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OUR 



SYSTEM OF GOVERNMENT 



/BY 

ALLEN E. ROGERS, A. M. 

PROFESSOR OF CIVICS IN THE MAINE STATE COLLEGE AND 
MEMBER' OF PENOBSCOT COUNTY BAR. 



PART I. 

THE CONSTITUTION OF THE UNITED STATES. 



PART II. 
THE CONSTITUTION OF THE STATE OF MAINE. 

ORONO. MA INK. 
1896 




Copyright, 1895, 
By Allen E. Rogers. 



PRINTED BY J. P. BASS & CO.. BANGOR, ME. 



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PREFACE. 



In the preparation of this work, the endeavor has been to set forth 
concisely from a historical and legal standpoint the fundamental 
principles of our system of government. Wherever in the exposition 
of the different topics it has been feasible to make use of the opinions 
of those courts whose decisions must be regarded as authoritative, and 
of those jurists and statesmen whose writings have almost as conclu- 
sive weight. I have preferred to do so, rather than lay down any prop- 
ositions of my own. "It is better to drink from the fountains than to 
seek the rills 

Possibly this book may be criticised as not being sufficiently ele- 
mentary for the purpose for which it is designed, but the time has 
come when the study of civics in our schools must be entered upon 
seriously and earnestly. Not only the perpetuity of the Republic, but 
the safety of society itself from the dangers that threaten it, depend 
upon a broadly diffused knowledge of the nature of our free institu- 
tions and a clear appreciation of the fact that in them alone is to be 
found the guaranty of freedom, and happiness, and progress. 

Agesilaus of Sparta being asked, "What ought the youth to learn?" 
quickly 'responded, "That which they ought to practice when they 
become men." There is no need for me to make application of this 
truism. Whatever duties may devolve upon the youth of this land 
when they become men and women, the highest, the most imperative 
duty of all will be that of true American citizenship. The pupil may 
become a lawyer, a farmer, a merchant, a clergyman, a mechanic, but 
he must remain a citizen; and if our public schools fail to give him an 
intelligent appreciation of his duties as a citizen, they fail in that 

which more than any thing else justifies their existence. Hence. 1 

(v) 



VI PREFACE. 

believe that in the schools of our State, and of every State of our 
great Union, the study of the history of the Nation, of our govern- 
mental institutions, and of the great principles of our law, should find 
an important and ample place ; not for one or two days of a week, or 
for one or two terms of a year, but for such a time, and in such a 
manner as will create in the minds of our young men and women a 
living and impelling consciousness of the fact that upon ther/i will 
rest the future of the Republic; as will fit them, so far as text-books 
and instruction can fit them, to bear wisely and well this great 
responsibility. 



CONTENTS. 



PART I. 

CHAPTER I. 

PAGE 

Introductory — Law in General, ...... i 

CHAPTER II. 

The Anglo-Saxon Polity and the Development of the Eng- 
lish Constitution, ....... 8 

CHAPTER III. 

The Settlement and Political History of the English Col- 
onies in America, ....... 33 

CHAPTER IV. 
The Growth of Political Union Between the Colonies, . 84 

CHAPTER V. 

The Articles of Confederation and the Adoption of the 

Constitution, ........ 101 

CHAPTER VI. 

The Constitution of the United States, .... 116 

PART II. 

CHAPTER I. 

The Settlement and Early History of Maine, ... 431 

(vii) 



Ylll 



CONTEXTS. 



CHAPTER II. 



The Constitution of the State of Maine. 



PAGE 

454 



APPENDIX. 



The Magna Charta, 

The Bill of Rights, 

The Declaration of Independence, 

The Articles of Confederation, 

The Ordinance of 1787. 



553 

561 

564 
567 

573 



CHAPTER I. 

INTRODUCTORY — LAW IN GENERAL. 

A state, or nation, is a collection of people subject to a 
common system of laws and dwelling in a certain terri- 
tory over which it has a recognized right of control. 

The authority of a nation within its own boundaries is 
complete and exclusive, and any restriction upon this 
authority by a foreign power involves to the extent of 
such restriction a transfer of its sovereignty to that power. 

The instrument by which the nation exercises its con- 
trol over its constituent members, seeks to secure the 
common advantage, and holds relations with other na- 
tions, is termed the government. 

The classification of governments into monarchies, aris- 
tocracies, and republics, made by Aristotle and adopted 
in many modern text-books, has reference to attributes 
rather than to actual types ; for, in but rare instances, do 
we find the monarchical, the aristocratic, or the republi- 
can principle prevailing to the exclusion of the others. 
The terms themselves, as frequently used, are also mis- 
leading, often having reference to the apparent rather 
than to the real form of government : Thus, the republic 
of Venice was ruled by the most tyrannical kind of an 
oligarchy, and the monarchy of England is in some im- 
portant respects even more democratic than is the repub- 

(i) 



2 OUR SYSTEM OF GOVERNMENT. 

lie of the United States. A more significant classification, 
and one that must always be recognized in the study of 
political history, is that of absolute governments, constitu- 
tional governments, and mixed governments, i. e., those 
which are absolute in certain respects and constitutional 
in others. 

An absolute government, claiming the source of its 
authority to be higher than the will of its subjects, does not 
hold itself responsible to them. Happily this class is now 
represented among the nations of Christendom by Russia 
alone. 

A constitutional government recognizes by the fact 
that it possesses a constitution that its powers are derived 
from the people, to whom it is amenable, and with whom, 
in the last resort, lies all authority. The absolute princi- 
ple and the constitutional principle may also exist in the 
same government, the sovereign exercising unrestrained 
authority in certain matters, while in others, limits estab- 
lished by the people upon the exercise of governmental 
power are recognized and respected. It is the conflict of 
these opposing principles, the crown seeking to strengthen 
its prerogative, i. e. to extend the scope of its irresponsible 
power, and the parliament striving to increase govern- 
mental responsibility, that renders the early history of 
England important above all others in the study of the 
growth of political institutions and of the development 
of constitutional liberty. 

A constitution may be either written or unwritten. 

A written constitution is the definite expression of the 
will of the people as to the form of their government, the 
powers that it may exercise, and the limitation upon its 



i 



LAW IN GENERAL. 3 

authority. Such an instrument must be held as final and 
conclusive in all respects until modified by those from 
whom it derives its force, and in the manner that they 
therein prescribe. 

An unwritten constitution, of which that of England is 
the great example, is but the aggregate of governmental 
principles and practices that have become established 
through custom or legislation. A constitution of this 
nature cannot be regarded as conclusive or final as affect- 
ing the government, since the legislative branch of the 
government may modify it in any manner except that 
which would involve a denial of the right of a general 
ultimate control on the part of the people ; this, obvi- 
ously, would be the exercise of absolute power and a 
denial of the very existence of the constitution. 
^ A constitutional government has relations ; first, to its 
subjects considered as the source of its authority ; second, 
to its subjects considered as subjects ; and third, to other 
governments and the subjects of other governments. 

The relation of a government to its subjects considered 
as the source of its authority comprises the domain of 
constitutional law. It is clear, however, that " law" denot- 
ing that expression of the will of the people which de- 
termines the form and character of their government its 
powers and the limitations upon its authority, has a 
meaning quite different from the same word as used to 
signify the body of rules emanating from the government 
for regulating the conduct and determining the mutual 
relations of the people. 

Municipal law, or what we ordinarily understand by the 
simple term " law," denotes the body of rules emanating 



4 OUR SYSTEM OF GOVERNMENT. 

from the supreme political power of a state and ad- 
dressed to those who are subject to its authority for the 
purpose of regulating their conduct and determining their 
social and business relations. By this, it is not to be un- 
derstood that every law proceeds directly from the su- 
preme political power, for, besides the express legislative 
enactments, which may be regarded as so proceeding, a 
nation may, and usually does, tacitly adopt a general sys- 
tem of jurisprudence in which the existence of a particular 
rule or law in question may be ascertained, or from 
which it may be deduced. This leads to the division of 
municipal law into the unwritten, or common law, and 
the written, or statute law. 

-In the United States, the great mass of the unwritten 
law is derived from the ancient laws and customs of Eng- 
land ; of these, many had existed, in germ at least, among 
our Anglo-Saxon and Danish ancestors long before they 
left their homes on the shores of the North sea to invade 
and take possession of Britain, had, perhaps, come into 
northern Europe with them when the tide of Teutonic 
immigration swept in from the East. 

"The common law of England consisted of those 
maxims of ' freedom, order, enterprise, and thrift which 
had prevailed in the conduct of private affairs, the man- 
agement of public business, the regulations of the do- 
mestic institutions, and the acquisition, control, and trans- 
fer of property from time immemorial. It was the out- 
growth of the thought and action of the people, and was 
modified gradually and insensibly from time to time, as 
those habits became modified, and as civilization ad- 
vanced, and new inventions introduced new modes of 



LAW IN GENERAL. 5 

business and new wants and conveniences. Springing 
from the very nature of the people themselves, and de- 
veloped in their own experience, it was obviously the 
body of laws best adapted to their needs, and as they 
took with them their natures, so they would take with 
them their laws, whenever they should transfer their 
domicile from one country to another." 1 

As the laws and customs of the early English people are 
the basis of the present legal system of their descendants, 
so the Roman, or civil law is the foundation on which those 
nations built whom Rome subjected to her sway and 
upon whom she imposed her civilization. The legal sys- 
tems of France and of the other so-called Latin nations 
of Europe bear much the same relation to that of Rome 
as the languages of those countries bear to the Latin 
tongue. But as our language, fundamentally Anglo- 
Saxon, has received many additions from Roman sources, 
so our civilization, Teutonic at its base, is composite in 
its superstructure, and the exponent of this civilization, 
the common law, Anglo-Saxon in its spirit and develop- 
ment, has been supplemented and enriched by doctrines 
adapted from the great body of the jurisprudence of 
ancient Rome. 

Through judicial decisions, which are continually es- 
tablishing new principles by analogy and extending and 
modifying the application of old ones, or, indeed, denying 
such application altogether when the ancient customs that 
they reflect have become obsolete, the common law keeps 
pace with the needs and requirements of our advancing 



'Cooley Constitutional Limitations, 5th Edition, p. 29. 



6 OUR SYSTEM OF GOVERNMENT. 

civilization, and is, therefore, the product of the present 
age as well as of those that are past ; hence, the above 
quotation from Judge Cooley applies to the development 
of the common law in America in the nineteenth century, 
as well as to its growth in England in the twelfth or 
fifteenth. 

The written, or statute law, is the law formulated and 
expressly declared by that department of government in 
which the legislative power is vested. The statute law, 
as the last expression of the law-making power, takes 
precedence in authority of the common law, for while a 
statute may modify or repeal a prior statute or the pre- 
existing common law, a general custom or practice can 
never acquire legal validity against a statute. The nature 
of the written law will be more fully considered in the 
discussion upon those clauses of the Constitution that de- 
termine the organization and the powers of Congress. 

International law comprises those rules of conduct 
which nations recognize in their dealings with one another 
and with one another's subjects. So far as the nations 
themselves are concerned, international law is fundament- 
ally different from constitutional law and municipal law in 
that it proceeds from no definite source and is enforced 
by no definite authority ; like the common law, it has its 
origin in custom, but unlike the common law, it cannot 
be regarded as proceeding from a power superior to those 
affected by it, for a sovereign nation recognizes no au- 
thority superior to its own. 

So far, however, as the principles of international law 
affect individuals by imposing upon them certain duties 
or restrictions, it becomes a part of the municipal law of 



LAW IN GENERAL. 



our land, and, as such will be applied by the courts ; that 
is to say, if any established rule of international law under 
consideration has not received legislative sanction and 
been embodied in a statute, it will be enforced as a part 



of the general unwritten law. 



CHAPTER II. 

THE ANGLO-SAXON POLITY, AND THE DEVELOPMENT OF 
THE ENGLISH CONSTITUTION. 

The form of the government of the United States is an 
independent and unique creation, but its substance and 
the substance of our political institutions generally, are 
the growth of centuries ; and the spirit which detefmined 
this form, and in which these institutions have been de- 
veloped is the same that has characterized the Anglo- 
Saxon race from its first appearance on the stage of 
history. 

Of the social and political life of those Teutonic tribes 
that dwelt at the beginning of the fifth century on the 
shores of the North Sea and on the banks of the Elbe 
and the Weser, we directly know little or nothing, but from 
what Caesar and Tacitus have recorded of their kindred 
along the Rhine, and from what we can learn of them 
during their conquest of Britain, the general character of 
their early institutions may be fairly well determined. 

Socially, the people were divided in four classes ; the 
eorls, or aethelings, i. c. the nobles ; the ceorls, or free- 
men ; the laets, and the slaves. The nobles were distin- 
guished from the great mass of the freemen by birth ; 
they were, or were supposed to be, the descendants of 
the original founders of the community in which they 

(8) 



THE ANGLO-SAXON POLITY. 9 

lived, or of some early military leaders, and in many 
cases they probably claimed descent from some mythi- 
cal hero, or from the gods. They were usually the 
leaders of the village bands in time of war and enjoyed 
distinction and respect in time of peace ; their claim to 
such preference, however, rested wholly on the free recog- 
nition of their fellow villagers. 

The ceorls, or freemen, were the descendants of the 
later settlers who had been admitted to full rights in the 
community or of such of the original settlers as had 
not taken a leading part in establishing it. They con- 
stituted the great body of the people and formed the 
basis of the Teutonic polity. By them were decided 
all general matters pertaining to their "tun;" the choice 
of the "reef," or head man, the admission of strangers 
or outsiders to membership in the community, and the 
questions of peace and war. When war was declared, 
they, as freemen whose jealously guarded privilege it 
was to bear the spear and shield, formed the ranks of 
the village host as it marched to foray or battle. Be- 
low the ceorls were the laets ; their place in the social 
order is not definitely ascertained, perhaps was in itself 
indefinite. In some respects they were probably in the 
condition of serfs, since they were compelled to till the 

Note : It must be borne in mind that it is the general character 
and condition of the social and political institutions of these primi- 
tive Germanic tribes that are here set forth, and not a scheme of any 
definite and well-ordered system of government; such a system, in all 
probabilities, they never possessed. The discussion throughout this 
entire chapter is, it scarcely needs be said, necessarily very general 
and discursive; volumes instead of pages would be required to make 
it otherwise. 



10 OUR SYSTEM OF GOVERNMENT. 

soil of some freeman and to follow him to battle ; the 
latter duty, however, was undoubtedly looked upon as a 
privilege rather than as a burden, and a badge of free- 
dom rather than of bondage. Against others than his 
lord, the laet had as full protection for his person and 
property as the freeman himself, but he was not allowed 
to take part in the public assemblies, or to enjoy a share 
of the public land, nor, when land became finally appro- 
priated as private property, was he permitted to come 
into possession of it. 

This class was, perhaps, made up of those who volun- 
tarily attached themselves to the village without being 
admitted to full membership, and of the descendants of 
those from whom the soil had been originally wrested. 
It was accidental in the Teutonic polity rather than char- 
acteristic of it, and, from the constant tendency to lessen 
the disabilities of its members, undoubtedly served as a 
means by which the ranks of the freemen received con- 
stant accessions from outside communities. 

At the bottom of the social scale were the slaves. This 
class was made up of those who had been taken captive 
in war, and of those laets and freemen who in time of dis- 
tress had sold themselves for bread. The slave had no 
political importance and no social rights ; he was merely 
a chattel, his master might slay him with impunity, and a 
stranger injuring him or taking his life was required 
simply to pay damages to his owner. 

In the political life of the ancient Teutons, the family 
was the unit, as the " hyde," 1 the amount of land sup- 



'Variously estimated at 60, 80 and 100 acres. 



THE ANGLO-SAXON POLITY. I I 

posed to be necessary for the support of a family, was the 
territorial unit. A group of related or connected families 
inhabited the mark, or tun ; both these names originally 
denoted the belt of wild land that surrounded the little 
commonwealth, which served not only as mark, or limit, 
and a common pasture, but as a defense against sudden 
and insiduous attacks, for whenever a stranger would ap- 
proach the village, he was obliged to sound a horn while 
coming through the waste on the pain of being regarded 
as an enemy and put to death. The land aside from the 
homestead lots was originally held in common, that is, 
was owned by the community as a whole. After a large 
part of this common territory had been set aside for gen- 
eral pasturage, the remainder was annually assigned to 
the different freemen for their private use. This yearly 
assignment was made by the tun-mote in the spring be- 
fore the time of planting, and in this fact we find the 
origin of the March meetings of the New England towns 
of to-day. 

A number of neighboring tuns collectively formed the 
hundred, the union of the hundreds formed the gau or 
scir (shire), which was occupied by the tribe, and the 
union of the scirs formed the nation. At the time of 
their invasion of Britain, however, the Angles, Jutes, and 
Saxons had not passed beyond the tribal organization, 
and the conquest of their new home was effected, not by 
a general immigration, but by a long succession of inde- 
pendent invasions by different tribes that were to consti- 
tute one nation only after centuries of conflict with one 
another. 

The administration of justice, at first probably in the 



12 OUR SYSTEM OF GOVERNMENT. 

hands of the freemen of the different tuns assembled in 
their tun-motes, (town-meetings), became early a func- 
tion of the hundred-mote. The law of punishment for a 
crime or offense was that of retaliation, " a life for a life, 
and a limb for a limb," but the crime was to be estab- 
lished and permission given, before the injured man or 
his kindred could exercise the right of vengeance. The 
subsequent appraising of the lives and limbs of the dif- 
ferent classes at certain fixed rates, and the assumption of 
responsibility by each family for the misdoings of its 
members, however rude it may seem to us, marks a step 
in advance. 

Such government as existed was intensely democratic 
in its nature ; on the mote-hill or under the sacred tree, 
there were frequent meetings to consult upon and decide 
public matters, the proposals being made and discussions 
carried on by the leading men, while the body of the 
freemen standing around clashed their spears upon their 
shields as applause and shouted their approval, or showed 
their dissent by murmurs and other expressions of dis- 
satisfaction. " It is with a reverence such as is stirred 
by the sight of the head-waters of some mighty river 
that one looks back to these village-moots of Friesland 
and Sleswick. It was here that England learned to be a 
' mother of Parliaments.' It was iri these tiny knots of 
farmers that the men from whom Englishmen were to 
spring learned the worth of public opinion, of public dis- 
cussion, the worth of the agreement, the ' common sense,' 
the general conviction to which discussion leads, as of the 
laws which derive their force from being expressions of 
that general conviction. . . . The talk of the village 



THE ANGLO-SAXON POLITY. 1 3 

moot, the strife and judgment of men giving freely their 
own rede and setting it as freely aside for what they learn 
to be the wiser rede of other men, is the groundwork of 
English history." 1 

The centre of the hundred-mote was the representa- 
tives elected by the freemen in their different towns, but 
around them gathered such of the freemen of the hun- 
dred as might choose to attend, actively taking part in 
the proceedings. In all graver matters, this body acted 
as a court to decide controversies between individuals and 
to affix penalties for crimes, and, doubtless, it also laid 
down rules and laws on such matters as affected the or- 
ganization that it represented. 

Above the hundred-mote was the folk-mote ; this at 
first was the meeting of the tribe, but when the tribes 
were united into the nation, it became the meeting of the 
nation. The directive force in the folk-mote was the 
witena-gemote, the council of the wise ; this was, in gen- 
eral, composed of the ealdormen elected for this purpose 
in the hundred-motes, although with them sat many rep- 
resentatives from the different tuns. 

The folk-mote was the highest law-making body and 
court; under the leadership of the witena-gemote it made 
the general laws of the tribe, elected the host-leader, the 
heretoga, to lead in time of war, and the chief ealdorman 
to be their head man in peace. 

In both the hundred-mote and the folk-mote the repre- 
sentative and the democratic principle seem to have ex- 
isted side by side ; here, as in the tun-mote, it was the 



Green's History of the English People, Ch. L 



14 OUR SYSTEM OF GOVERNMENT. 

chief men proposing and discussing, and such of the 
general body of the freemen as might choose to be pres- 
ent, noisily approving or disapproving. 

The English settlers in Britain brought with them all 
the elements of Teutonic society as they existed in their 
native lands, and marks, hundreds, and scirs arose in their 
new homes as they had arisen in Germany. 

But a force was at work, even before the great invasion, 
that was to destroy the primitive democracy of the race : 
this was the collecting by popular and successful leaders 
of bands devoted to themselves personally. The ealdor- 
man or heretoga thus became something more than a 
mere elective magistrate or a host-leader ; he became the 
personal lord to some particular men, their " hlaford," or 
loaf-giver, and they, in turn, were bound to do him per- 
sonal service, became his thegns, or "doers." The per- 
petual pressure of war under which the invaders lived 
soon transformed these elective lords into kings. This 
may have come about through the acquiesence of the 
tribe in the continued exercise of power on the part of 
successful leaders whose position would be further 
strengthened by the conquest of neighboring tribes and 
peoples, and their acknowledgment of the headship of the 
victorious tribe and of their subjection to its leader. But 
the great factor in completing this change and in giving 
to the kingship an increasingly absolute character was the 
transition from the system of common ownership in land 
to that of its ownership by the lord, or king ; for as he came 
more and more to be regarded as representing the people, 
the land came more and more to be regarded as his 
land. We can easily imagine how, as England passed 



THE ANGLO-SAXON POLITY. 1 5 

from the Briton to the Teuton by conquest, the various 
petty kings built up and cemented their power by gradu- 
ally assuming the right to grant territory newly won to 
their thegns on condition of service, and how these 
thegns, through the great power thus placed in their 
hands, eventually superseded the hereditary aethelings as 
a noble order. 

Organization, instead of individual independence, now 
became the controlling principle in the political life of our 
English ancestors, and as their feudal system grew more 
complete, the relation of lord and vassal might be con- 
tracted between men of any rank ; between a weaker and 
a more powerful king, a noble and a ceorl, and even be- 
tween a richer and a poorer ceorl. It soon came to be 
looked upon as the duty of every man to seek a lord, and 
finally a lordless man almost ceased to be considered as a 
part of the body politic. 1 

These changes involved the constant degradation of the 
great body of the old class of freemen who soon sank to 
the condition of villeins attached to the soil and bound 
to serve its possessor, their lord, in tillage and in war. 
The loss of political power necessarily accompanied the 
loss of their social importance and independence and the 
free tun-mote degenerated into a court made up of the 
tenants of the land which the lord did not reserve for his 
own direct use, and over this meeting the lord himself 
presided. In this court, "the lord exercised the functions 
depending on the free possession of the land, which in 
the [earlier] free community belonged to all the towns- 



'See Stubbs' Const. History, Vol. I. Ch. VII. §74. 



1 6 OUR SYSTEM OF GOVERNMENT. 

men, and likewise a jurisdiction in civil and criminal 
suits, which with all the profits, — for in early time the 
pecuniary interests of justice formed no small part of the 
advantages of judicial power, — was conferred on him by 
the original gift (by the king), and removed from the 
cognizance of the hundred." 1 

In a similar manner, the hundred-mote and the folk- 
mote passed under the control of those who had posses- 
sion of the land, and when shire had united to shire and 
kingdom to kingdom, and when Christianity had displaced 
the worship of Woden, the great meeting of the people 
shrunk to a witena-gemote composed of the thegns of the 
king, the bishops of the church, and a few ealdormen from 
the shires. The ancient gathering of the common people 
was now represented by the attendance of such of the 
freemen as lived in the vicinity and the retainers of the 
nobles ; and to their manifestations of assent or dissent 
probably but little attention was given. 

Although the first great Teutonic invasion of Britain 
was in 449 A. D. it was not until the year 828 that the 
country was even nominally united. In this year the dif- 
ferent kingdoms submitted to the overlordship of Egbert, 
the ruler of Wessex, a Saxon kingdom occupying the 
southwestern part of the island. This semblance of unity 
was, however, soon shattered by the invasion of the Danes 
whose career of conquest was finally checked by a grand- 
son of Egbert, the famous King Alfred. 

Though the treat}* of Wedmore in 878 secured to these 
new Germanic invaders the northeastern half of Britain 



] Stubbs' Const. History of England. Vol. I. Ch. V. §42. 



THE ENGLISH CONSTITUTION. \J 

and thus swept away the old English kingdoms estab- 
lished there, no essential or permanent change was ef- 
fected in the political life of the country, for the Danes 
were of the same race as the Saxons themselves, and as 
Wessex gradually extended its sway over them they be- 
came one people with their conquerors. In 954, Eadred 
of Wessex again established the power of his house 
throughout England, as the country had now begun to be 
called, over which he proclaimed himself Caesar. The 
death of Eadred was followed by disruption, and now 
came a new invasion of the Danes so overwhelming in its 
character that the different petty kingdoms were crushed 
out, and England as one country passed under the control 
of its foreign master. 

So far as constitutional development is concerned, the 
great result of this conquest was the final and definite 
union of the country into one nation. Canute, who rep- 
resents from an administrative point of view everything 
effected by the Danish kings in England, ruled in accord- 
ance with the established laws and customs of Wessex, 
and, save the strengthening of the royal power by a more 
complete development of the feudalism already existing, 
his reign was in no respect different from that of a native 
king. Witena-gemote, scir-gemote, and hundred-mote 
carried on their deliberations as in the days of Egbert and 
Alfred. 

Hence, in 1042, when Edward of the royal house of 
Wessex had been called to the throne because of the 
wickedness of the sons of Canute who had successively 
ruled after their father's death, the different Teutonic 
races had become so thoroughly amalgamated that the 



1 8 OUR SYSTEM OF GOVERNMENT. 

fact that the Danes were not of the old Anglo-Saxon 
stock was almost forgotten. 

The conquest of England by the Normans under Wil- 
liam the Conqueror in the year 1066 essentially changed 
the character of the kingship and modified the English 
constitution generally. 

William, after he had secured control of the southern 
part of the country by his victory at Hastings, was duly 
elected king by the witena-gemote at London with a mul- 
titude of Normans and Saxons standing about and shout- 
ing their assent in the old form. Here, however, the 
ancient assembly was made to play the part of self-execu- 
tioner, for the great domains that the Conqueror confis- 
cated from resisting and rebellious Saxons, he parcelled out 
among his followers who thus became the new nobility ; 
soon the Normans displaced the Englishmen in the great 
national assembly and this degenerated into a council of 
the king composed of the bishops, abbots and leading 
nobles, who were called together from time to time by a 
special writ, or summons, for advice. From this council 
was afterwards to develop the present House of Lords ; 
and in a body, certain great officers of the royal house- 
hold, whose duty it was to assist the king in adminis- 
trative matters, are to be seen the beginnings of the 
Cabinet and of the superior courts of law of modern 
England. 

The sovereign himself thus came to be looked upon as 
the source of all authority and of all justice ; for although 
the people were generally left to themselves in the ad- 
ministration of their local affairs, and the old Saxon 
courts and customs still remained, yet above them all was 



THE ENGLISH CONSTITUTION. 1 9 

the will of the king and the court of the king to which 
they were in every respect subordinate. 

The feudalism established by William, which displaced 
the indefinite system of vassalage that had grown up in 
Saxon England, differed from the feudalism of the Conti- 
nent in that every person whether holding land as a ten- 
ant-in-chief by a direct royal grant, or as a sub-tenant, 
from one to whom the king had previously granted it, 
was a vassal of the king, and owed homage and liege 
duty to him alone. In 1086, all the landholders of the 
kingdom, tenants-in-chief and tenants of intermediate 
lords, were called together in a great assembly at Salis- 
bury by the Conqueror and there became "his men." In 
this meeting of those who held possession of the land we 
may see the germ of the later House of Commons. 

In the half-century following the Norman conquest 
there was an almost continuous struggle between the 
kings and the barons on one side, seeking to establish and 
extend their power and to enforce feudal exactions, and 
the mass of the people on the other, striving to resist 
them. But eventually conflicts arose between the king 
and the nobles, and the latter, feeling with the English the 
weight of royal oppression, often joined with them in the 
demand for the ancient system of Saxon laws, — "The 
good old laws of Edward the Confessor." The king, also, 
to secure the aid of the English against his frequently 
rebellious baronage, often restored or promised to restore 
to them certain of the liberties of which they had been de- 
prived. It was to gain the favor of the common people 
to whom he was obliged to look for support on his acces- 
sion to the throne that Henry I. made, in a charter, a 



20 OUR SYSTEM OF GOVERNMENT. 

royal acknowledgment of certain rights and liberties pos- 
sessed by the church and by his subjects and a promise 
to restore the old constitution of the realm modified by 
such changes as had been made by his father, the Con- 
queror. Not, however, until the reign of Henry II. 
(1154-1189), was there any serious effort on the part of 
a sovereign to give effect to these provisions and promises. 
This king on coming to the throne confirmed the charter 
of Henry I. and at once set about the work of reform. 

In the administration of justice, especially, was a great 
advance made. By the assize of Clarendon issued in the 
year 11 66 with the assent of the great council of prelates 
and barons, among other judicial measures established, 
was one which, if not the origin of our modern trial by 
jury, is, at least, the earliest definite fact to which this 
system can be clearly traced. 

In the previously existing trial by compurgation, whose 
origin, like that of trial by ordeal, is obscure, the accused 
was summoned to appear at the court bringing with him 
relatives and friends varying in number according to the 
gravity of the offence with which he stood charged, who 
might with him make oath as to his innocence. These 
oaths the accuser might offset by an equal number of 
oaths to the contrary on the part of his friends, and in 
such event, and, indeed, in every event where the oaths 
of the compurgators failed, recourse was had to trial by 
ordeal, or "judgment of God," where innocence was es- 
tablished by the ability of the accused to hold hot iron in 
his hand without receiving injury, or by his sinking when 
thrown into water, the fact of his floating being held 
conclusive as' to his guilt. 



THE ENGLISH CONSTITUTION. 2 1 

By the assize of Clarendon, twelve lawful men of each 
hundred together with four men from each township com- 
posing it were sworn to present for trial by ordeal the 
criminals or reputed criminals of their district. 1 The 
functions of this body were similar to those of our present 
grand jury and trial jury, for "the ordeal in these cir- 
cumstances being a resource following the verdict of a 
jury acquainted with the fact, could only be applied to 
those who were to all intents and purposes proved guilty. 
The abolition of the ordeal by the Lateran Council 2 in 
1 216, and the impossibility of securing perfect justice by 
the machinery of the grand jury, led the way (at about 
the middle of the thirteenth century) to the usage of a 
second or petty jury, to traverse the decisions of the 
former. "3 

In 1 1 76, by the assize of Northampton the country 
was permanently divided into six judicial districts, and for 
each of these judges were appointed who were to receive 
the results of the deliberations and inquisitions of the 
local juries ; at the same time a definite court of appeals, 
the king in council, was also created. These courts es- 
tablished by Henry II. with the advice and assent of his 
grand council were the parents of the various judicial 
tribunals of England as they exist to-day, and, generally 
speaking, of those of the United States. 

From the death of Henry II. until 12 15, there is little 
to mark the constitutional development of the country ; 



*See discussions on Art. III. Sect. 2, Clause 3, and on Art. V. 
Amendments; Constitution of the United States. 

2 Council of the Church at Rome. This affected all Christian lands. 
3 Stubbs' Select Charters, p. 142. 



22 OUR SYSTEM OF GOVERNMENT. 

but in this year, under the intolerable oppression of 
John, the worst tyrant that England has ever seen, the 
barons rose in arms and compelled the king to sign what 
has rightly been termed "the Great Charter of English 
Liberty." 1 

"The constitution of England has, indeed, no single 
date from which its duration is to be reckoned. The in- 
stitutions of positive law, and the far more important 
changes which have been wrought in the order of society 
during the six hundred years subsequent to the Great 
Charter, have undoubtedly lessened its direct application 
to our present circumstances. But it is still the keystone 
of English liberty. All that has since been obtained is 
little more than as confirmation or commentary ; and if 
every subsequent law were to be swept away, there would 
still remain the bold features that distinguish a free from 
a despotic monarchy." 2 The Magna Charta set forth 
nothing novel or strange ; in its essential parts the instru- 
ment was but the assertion in a definite form that could 
be appealed to, of those free principles which had been 
the characteristic of the political life of the Saxons, 
and which now were recognized and accepted by their 
Norman conquerors. 

In a clause whose substance has been incorporated in 
one form or another in our National and in all our State 
constitutions, and which, in fact, lies at the basis of free 
and responsible government, it was declared : " No free- 
man shall be taken or imprisoned, or disseised, or outlawed, 
or banished, or any ways destroyed, nor will we pass upon 



'See Appendix. 2 Hallam Middle Ages, Ch. VIII. 



THE ENGLISH CONSTITUTION. 23 

him, nor will we send upon him, ujiless by the lawful 
judgment of his peers, or by the law of the land" 1 

Another clause provided: "No scutage or aid shall 
be imposed in our kingdom, itnless by the general coun- 
cil of our kingdom; except for ransoming our person, 
making our eldest son a knight, and once for marrying our 
eldest daughter; and for these there shall be paid no more 
tha7t a reasonable aid!' By this was definitely set forth 
the principle that taxes are to be levied only with the 
consent of those who pay them, a principle which was 
time and again to be the subject of contention between 
king and Parliament until the revolution of 1688; which 
was asserted against Henry III. by the barons under the 
leadership of Simon de Montfort, against Charles I. by 
the House of Commons, and again by the American col- 
onies against Parliament itself. 

"And for holding the general council of the Kingdom 
concerning the assessment of aids, except in the three cases 
aforesaid, and for the assessing of scutages, we shall cause 
to be summoned the archbishops, bishops, abbots, earls, and 
greater barons of the realm, singly by our letters. And 
furthermore, we shall cause to be summoned gejierally, by 
our sheriffs and bailiffs, all others who hold of us in chief, 
for a certain^ day, that is to say, forty days before their 
meeting at least, and to a certain place; and in all let- 
ters of such summons we will declare the cause of such 
summons. And summons being thus made, the business 
shall proceed on the day appointed, according to the advice 
of such as shall be present, although all that were sum- 



'See Appendix. 



24 OUR SYSTEM OF GOVERNMENT. 

moned come not." This clause restores to the great council 
its national character ; from the mere council of the king, 
it becomes again "the general council of the Kingdom," 
and, as in "the archbishops, bishops, abbots, earls, and 
greater barons of the realm," we find the body that is 
soon to receive the name of the House of Lords, so in " all 
others who hold [land] of us in chief," we see the later 
knights of the shires who were to form an important part 
of the House of Commons. Here, in fact, is the definite 
beginning of the modern Parliament. 

The provisions of the charter were dictated by the 
barons, and it was they who by force of arms extorted 
from the king his reluctant signature to the instrument ; 
but they knew that to secure the fruit of their victory the 
support of the mass of the people must be gained. 
Hence, "clause by clause the rights of the commons are 
provided for as well as the rights of the nobles ; the in- 
terest of the freeholder is everywhere coupled with that 
of the barons and knights ; the stock of the merchant 
and the wainage of the villein are preserved from undue 
severity of amercement as well as the settled estate of the 
earldom or barony. The knight is protected against the 
compulsory exaction of his service, and the horse and 
cart of the freeman against the irregular requisition even 
of the sheriff. In every case in which the privilege of 
the simple freeman is not secured by the provision that 
primarily affects the knight or baron, a supplemental 
clause is added to define and protect his right; and the 
whole advantage is obtained for him by the comprehen- 
sive article which closes the essential part of the charter." 1 

^tubb's Const. History of England, Vol. II. Ch. XII. 



THE ENGLISH CONSTITUTION. 25 

The barons, appreciating the faithless nature of the king, 
appointed twenty-five of their number to compel his 
obedience to the charter, which was soon afterwards pub- 
lished and sworn to in every hundred-mote and manor- 
court throughout the land. 

The reign of Henry III. (1216-1257,) was a memor- 
able one in the history of Parliament. The exactions, 
wastefulness, and general misgovernment of this king 
aroused the barons with Simon de Montfort, Earl of Lei- 
cester, at their head, to stubborn opposition. The con- 
test was marked on the side of the king by complete 
faithlessness. He confirmed the Magna Charta in a 
modified form several times, only to violate its provisions, 
when it seemed to suit his purpose to do so, and gave his 
assent to measures of reform which he never intended 
to carry out, or to permit to be carried out, if he could 
avoid it. 

Finally in January, 1264, after Louis IX. of France, to 
whom the graver matters at issue had been submitted for 
arbitration by the king and the barons, had practically 
decided everything in favor of Henry, civil war broke out. 
In the meantime, however, many of the leading barons, 
partly from selfish motives and partly from jealousy, had 
deserted de Montfort and espoused the cause of the king ; 
but the towns, the universities, and the common people, 
recognizing that he was fighting their battles, rallied to 
his support. In May, 1264, de Montfort completely van- 
quished the royal forces at Lewes, and, as a consequence, 
was himself compelled for the time being to assume the 
control of public affairs. He now for support summoned 
a national parliament of bishops, abbots, earls and barons, 



26 OUR SYSTEM OF GOVERNMENT. 

together with two knights from each shire and two bur- 
gesses from each borough. The election by each shire 
of two knights to sit with the prelates and nobles in Par- 
liament was nothing novel, such representatives having 
been summoned to earlier meetings of the grand council, 
but the summoning of two ordinary citizens from each 
borough to take part in the deliberations was a partial 
restoration of the old Teutonic democracy and, at the 
same time, the beginning of a new constitutional era. 

At the battle of Evesham, in August, 1265, the forces 
of de Montfort were completely destroyed and he him- 
self slain, but Edward I., who succeeded Henry III. in 
1272, fully adopted in a great council called in 1295 the 
parliamentary system of the great patriot, and the Com- 
mons thus became a recognized factor in the political life 
of England. The present organization of the English 
Parliament and of the legislative bodies of America is 
but an evolution from the unauthorized scheme of de 
Montfort whose great purposes were carried out, although 
he suffered defeat and death in his endeavor to accom- 
plish them. 

The fame of Edward I. does not, however, rest on the 
establishing of the parliamentary system initiated by de 
Montfort ; his reforms in the administration of justice, 
and his wise legislative measures to meet the needs of the 
new England that had grown up since the Conquest not 
only mark him as a great law-giver, but in themselves 
were to react on Parliament and hasten its growth in in- 
fluence and power. 

It seems that at first the different orders, — earls and 
barons, bishops, knights of the shire, and burgesses, — de- 



THE ENGLISH CONSTITUTION. 2/ 

liberated separately and determined their respective 
grants to the crown ; this being the main purpose for 
which the two latter classes were summoned. After each 
order had made its decision, it was probably reported to a 
joint assembly of all, and there discussed. It also appears 
that the earls, barons, and bishops met regularly four 
times each year to take into consideration the general 
affairs of the realm and to advise upon the measures pro- 
posed by the king, while the two lower orders were ordi- 
narily called together only when a general imposition of 
taxes was desired. 

But Parliament was not long content with being the 
mere creature of the king. Even in 1297, they forced 
Edward I. to confirm the Magna Charta before they 
would grant a subsidy, and in 1322, it was expressly de- 
clared by statute that "the matters to be established for 
the estate of the king, and of his heirs, and for the estate 
of the realm and of the people, should be treated, ac- 
corded, and established in Parliament, by the king, and 
by the assent of the prelates, earls and barons, and by the 
commonalty of the realm." Five years later, Parliament 
deposed the weak king, Edward II. and declared his son 
his successor. 

In 1347, it was established that the prelates, earls and 
barons should form one body in Parliament, — the House of 
Lords ; and the knights of the shire and the burgesses 
another, — the House of Commons ; and thus the great 
legislative body of England definitely assumed the form 
in which it exists to-day. For a long time after this, how- 
ever, the doctrine was, that the Commons petitioned, and 
the king with the assent of the lords granted or denied 



2 8 OUR SYSTEM OF GOVERNMENT. 

their prayers. The power possessed by the ancient Saxon 
witena-gemote of sitting as a high court of justice, the 
Commons never shared. The House of Lords alone re- 
tained and exercised the functions of a judicial tribunal 
of the last resort; the Commons, however, by virtue of 
their petitioning power brought great political offenders 
before the Lords for trial and punishment. We see them 
exercising this power in 1386, w T hen they impeached the 
earl of Suffolk, before the upper House, and again in 
the following year, when they repeated their impeach- 
ment of the same nobleman, and also impeached another 
favorite of the king, who, this time, were both convicted 
and condemned to death. 

We have now traced in a necessarily brief manner the 
growth of those institutions in which the essential features 
of our own government had their origin. The story of 
their further development in England is essentially one of 
an almost continuous struggle between the Commons, 
seeking to extend the principles of free government and 
of constitutional responsibility, and the Crown, striving 
to maintain its prerogatives and to realize so far as pos- 
sible the doctrines of absolutism. 

As the powers and the province of Parliament became 
more definite, so also became the prerogative of the king. 
It now became a question as to what powers the Crown 
might exercise without the authority or consent of Parlia- 
ment, and what royal acts needed that authority or con- 
sent. The Crown naturally endeavored to hold its power 
at every point, and the Parliament as persistently en- 
deavored to limit it, and, as Parliament held the purse- 
strings, this body was in every case ultimately successful. 



THE ENGLISH CONSTITUTION. 29 

In the Parliament itself, the Commons exercised a con- 
tinually increasing influence. "The constitution of the 
House of Commons, like that of the church, is independ- 
ent of the divisions and contests that vary the surface of 
history. A battle which destroys half the baronage takes 
away half the power of the House of Lords ; the House 
of Commons is liable to no such collapse. But the battle 
which destroys half the baronage leaves the other half 
not so much victorious, as dependent on the support of 
the Commons. The possession of power rests ultimately 
with that estate which by its constitution is least depend- 
ent on personal accident and change. It gains not so much 
because the party which asserts its right triumphs over 
that which denies it, as because it stands to some extent 
outside the circle of the factions whose contests it wit- 
nesses and between which it arbitrates. All that is won 
by the parliamentary opposition to the Crown is won for 
the Commons ; what the baronage loses by the victory of 
the Crown over the one or the other of its parties is lost 
to the baronage alone. . . . And when under the 
Stewarts the time came for the maturity of national or- 
ganization to stand face to face with the senility of medie- 
val royalty, the contest was decided as all previous history 
pointed the way and subsequent history justified." 1 

This final struggle was the revolution of 1688 which 
resulted in the deposition of the short-sighted and obsti- 
nate James II. and in the calling of William of Orange to 
the throne. 

William at his accession in 1689 was obliged to give 



x Stubbs' Const. History, Vol. II. p. 321 



30 OUR SYSTEM OF GOVERNMENT. 

his assent to the " Bill of Rights," 1 an instrument declaring 
the essential rights and liberties of the people as against 
the Crown, and virtually vesting the supreme control of 
all governmental matters in Parliament. The fourth de- 
claration of the Bill of Rights is but an echo of the Magna 
Charta: — " That levying money for or to the use of the 
Crown by pretence and prerogative, without grant of Par- 
liament, for longer time or in other maimer than the same 
is or shall be granted, is illegal!' This, in connection with 
the sixth declaration which sets forth " That the raising or 
keeping a standing army within the kingdom in time of 
peace, unless it be with consent of Parliament is against 
law," is a final guarantee of the rights and liberties else- 
where asserted and of the maintenance of parliamentary 
supremacy in the future. 

Macauley writing of this revolution says : " And yet this 
revolution of all revolutions, has been the most beneficent. 
It finally decided the great question whether the popular 
element which had, ever since the age of Fitzwalter and 
de Montfort, been found in the English polity, should be 
destroyed by the monarchical element, or should be suf- 
fered to develop itself freely, and to become dominant. 
The strife between the two principles -had been long, fierce 
and doubtful. It had lasted through four reigns. It had 
produced seditions, impeachments, rebellions, battles, 
sieges, prescriptions, judicial massacres. Sometimes lib- 
erty, sometimes royalty, had seemed on the point of per- 
ishing. During many years one-half the energy of Eng- 
land had been employed in counteracting the other half. 



] See Appendix. 



THE ENGLISH CONSTITUTION. 3 I 

The executive power and the legislative power had so ef- 
fectually impeded each other that the state had been of 
no account in Europe. The king-at-arms, who pro- 
claimed William and Mary before Whitehall Gate, did in 
truth announce that this great struggle was over ; that 
there was entire union between the throne and Parlia- 
ment, that England, long dependent and degraded, was 
again a power of the first rank ; that the ancient laws by 
which the prerogative was bounded would thenceforth be 
held as sacred as the prerogative itself, and would be fol- 
lowed out to all their consequences ; that the executive 
administration would be conducted in conformity with the 
sense of the representatives of the nation ; and that no 
reform which the two houses should after mature delib- 
erations propose, would be obstinately withstood by the 
sovereign. The Declaration of Right, though it made 
nothing law which had not been law before, contained the 
germ of the law which gave religious freedom to the dis- 
senter, of the law which secured the independence of 
the judges, of the law which limited the duration of par- 
liaments, of the law which placed the liberty of the press 
under the protection of juries, of the law which prohibited 
the slave-trade, of the law which abolished the sacramen- 
tal test, of the law which relieved the Roman Catholics 
from civil disabilities, of the law which reformed the rep- 
resentative system, of every good law which has been 
passed during a hundred and sixty years, of every good 
law which may hereafter, in the course of ages, be found 
necessary to promote the public weal, and to satisfy the 
demands of public opinion." 

From the time of this revolution the constitutional his- 



32 . OUR SYSTEM OF GOVERNMENT. 

tory of England has been that of the steady increase of 
the Commons in power and influence, and of the corre- 
sponding decrease of the power of the sovereign and of 
the House of Lords, so that at present it may truthfully 
be said, that in the representatives of the English people 
is vested the ultimate decision of all matters pertaining 
to the state. 



CHAPTER III. 

THE SETTLEMENT AND POLITICAL HISTORY OF THE 
ENGLISH COLONIES. 

The English colonists brought to America as their 
heritage the customs, laws, and institutions of England ; 
but they settled here in detached groups which had no 
legal or political relation with one another save that of a 
common subjection and allegiance to the mother country. 
As the different colonies were founded for different pur- 
poses, their respective governments varied essentially in 
certain regards, and held different relations to the Crown 
and to Parliament. Throughout their history, however, 
is always to be seen the same resistance to the exercise of 
arbitrary power that in England resulted in the Magna 
Charta and the revolution of 1688, and in America in 
their independence as a nation. 

After several fruitless attempts to colonize America by 
speculators and adventurers, in 1578 Sir Humphrey Gil- 
bert obtained from the English government a patent 
granting to himself and his assigns the possession of all 
lands that he might discover, the patent to be of per- 
petual efficacy if a plantation should be established within 
six years. By this patent, he was to have sole jurisdiction 
of the territory within two hundred leagues of his settle- 
ment, with supreme executive and legislative authority. 
3 ( 33 ) 



34 OUR SYSTEM OF GOVERNMENT. 

Gilbert made two vain attempts at establishing a settle- 
ment, in the latter of which he lost his life, but Raleigh, 
his step-brother, not disheartened by his fate, obtained 
from Elizabeth a new charter in 1584. By the terms of 
this charter, Raleigh was made lord proprietor over such 
lands as he might discover and settle, on the conditions of 
homage and the payment of an inconsiderable rent. His 
power over these indefinite territories was to be practically 
unlimited, and included the right of making grants of them 
at his pleasure. 

Raleigh's attempts to colonize having proved futile, and 
financially disastrous to himself, in 1589 he endowed a 
company of merchants and adventurers with large conces- 
sions. This company directly attempted no settlements, 
but its leading members together with others procured in 
1606 a new charter from James I. authorizing them to 
lead another colony into Virginia. For the purposes of 
colonization the king selected the territory between the 
34th and 45th parallels of latitude and back from the 
coast into the woods without limit. This territory was 
divided between the London Company and the Company 
of the West, into which the original company was sep- 
arated. The Company of the West, or, as it was gener- 
ally called, the Plymouth Company, was to control the 
lands between the 38th and 45th parallels, and the Lon- 
don Company, those between the 41st and the 34th. 
Both grants thus included the territory between the 38th 
and 41st parallels. But as neither company was to estab- 
lish a settlement within a hundred miles of one belonging 
to the other, the possession of lands in this broad strip 
was made an object of competition, and this undoubtedly 



THE ENGLISH COLONIES. 35 

served as a stimulus to their zeal to establish new col- 
onies. 

The companies held their respective grants on the con- 
ditions of homage to the sovereign and the payment to 
him of one-fifth of all the gold and silver mined and of 
one-fifteenth of all the copper. 

By the terms of these grants, a general council com- 
posed of fourteen persons was to be appointed by the 
king, that, subject to his authority, was to have general 
superintendence of both colonies ; also, under his di- 
rection a superior council resident in England was to be 
appointed for each company, that was to have general 
charge of the colonies that it should establish. This 
superior council was, in turn, to name the members of 
the local councils which were to have the immediate 
supervision and control in the colonies themselves. 

Not an element of popular or religious freedom was in- 
troduced. The English church was to be the established 
church, and dissent from its doctrines or teachings was 
not to be tolerated. Not only murder and other great 
crimes, but dangerous tumults and seditions were to be 
punished by death at the discretion of the magistrate 
after the guilt of the accused had been established by a 
jury. All minor offences requiring corporal punishment, 
fine, or imprisonment, might be summarily determined by 
the local council. 

"The charter for colonizing the great central territory 
of the North American continent .... gave to 
the mercantile corporation nothing but a wilderness, with 
the right of peopling and defending it. By an extension 
of the prerogative, which was in itself illegal, the monarch 



36 OUR SYSTEM OF GOVERNMENT. 

assumed over it absolute legislative as well as executive 
powers. The emigrants were subjected to the ordinances 
of a commercial corporation, in which they could not act 
as members ; to the dominion of a domestic council in 
appointing which they had no voice ; to the control of a 
superior council in England ; and, finally, to the arbitrary 
legislation of the sovereign." 1 They were promised, how- 
ever, that they and their children should have all the 
rights and privileges of Englishmen ; a promise that 
would have been but mockery had the colonists not been 
of a character to effect for themselves its realization. 

Under these conditions, on the 19th of December, 
1606, one hundred and five emigrants set sail in three 
small vessels for America. They established the colony 
of Jamestown, which, after many reverses became pros- 
perous, but as a source of profit by no means realized the 
expectations of the promoters of the enterprise. 

In 1609, a second charter, at the request of the London 
company, was given to a new and larger body of adven- 
turers, or speculators. The territory granted to this com- 
pany extended two hundred miles to the north, and as 
many to the south of Old Point Comfort, from sea to sea. 
The new charter transferred to the company the powers 
which had before been reserved to the king. The su- 
preme council in England was now chosen by the mem- 
bers of the company, and, in the exercise of the complete 
power of administration and legislation with which it was 
vested, was independent of the monarch. This council 
abolished the earlier local council and appointed in its 



Bancroft, Vol. I. p. 86. 



THE ENGLISH COLONIES. 37 

place a governor to whom it gave the power to rule the 
colony with almost uncontrolled authority. The local 
council was, however, re-organized by Lord Delaware, the 
first governor appointed under the charter. 

Five months after the departure of the southern colony, 
the Plymouth Company sent out a hundred and twenty 
emigrants to colonize the northern part of Virginia. 
These arrived on the coast of Maine which they explored 
in part, and made their settlement near the mouth of the 
Kennebec river ; but the severity of the following winter 
together with the return of their leader to England and 
the death of some of the most influential friends of the en- 
terprise led to the abandonment of the attempt. Many of 
the emigrants returned to their native country, and the 
second colony of Virginia came to an end. 

From the establishment of the colony at Jamestown to 
1 6 1 1, property had been held in common, the sole idea 
on the part of the company being that of financial gain, 
but in this year, the policy was changed for one less sel- 
fish, and to each man a few acres of land were given to be 
held as private property ; four years later, fifty acres of 
land were assigned to every freeman to hold in his own 
right. 

In 1619, on the arrival and assumption of the gover- 
norship by Sir George Yeardley, the true life of the col- 
ony began. Bringing with him " commissions and in- 
structions for the better establishing of a commonwealth," 
he made proclamation that "those cruell lawes, by which 
the planters have been soe long governed," were now 
abrogated, and that they were hereafter to be governed 
by those free laws under which his majesty's subjects in 



38 OUR SYSTEM OF GOVERNMENT. 

England lived. That the planters might have a part in 
governing themselves, it was established that a general 
assembly should be held each year composed of the gov- 
ernor and council, with two burgesses from each hundred, 
town, and plantation, freely elected by its inhabitants, and 
to this assembly was given the right to make and ordain 
whatsoever laws it should think good and profitable. 

Summons was accordingly sent over the country, and 
on July 30, 161 9, delegates chosen in accordance with the 
proclamation of governor Yeardley, assembled at James- 
town ; this was the first representative body in a land that 
was afterwards to be a country of representative govern- 
ments. This assembly, in addition to its legislative func- 
tions, acted as a criminal court. The company in England 
had silently approved the colonial assembly which had 
been convened, and in July, 1621, established for the col- 
ony a written constitution. By the terms of this ordinance, 
or charter, there was to be a governor and a permanent 
council appointed by the company, and a general assem- 
bly consisting of the members of the council and two 
burgesses elected from each of the municipal organiza- 
tions ; to the governor was given the right to veto any 
measure passed by the assembly, and all measures re- 
quired the ratification of the council of the company in 
England to give them validity ; on the other hand, it was 
also provided that no orders of the council of the com- 
pany should be binding unless ratified by the colonial 
assembly. The right of trial by jury was provided for, 
and the courts were required to conform their methods to 
those of the courts of England. 

In 1624, a quarrel having arisen between two factions 



THE ENGLISH COLONIES. 39 

of the company in England, the courts, at the instigation 
of the king, James I., annulled its charter, and the control 
of the colony of Southern Virginia thus passed directly 
into his hands. In the following year Charles I. came to 
the throne, and on his accession provided for the estab- 
lishment of two councils after the old plan, one in Eng- 
land, and one in America. The appointment of the mem- 
bers of these councils and also of the governor of the 
colony he reserved to himself. Although this new ar- 
rangement was apparently arbitrary and despotic, in 
reality it interfered but little with the rights and liberties 
claimed by the Virginia colonists, since it left their repre- 
sentative assembly intact. 

During the civil war in England (1642- 1646) Virginia 
remained loyal to the king, and after his death refused for 
some time to acknowledge the new government. In 1652, 
Parliament sent commissioners with a naval force to bring 
the colonists to terms. Instead, however, of employing 
force which they saw would be resisted, the commissioners 
used conciliatory measures and granted to the colonists 
the right of electing their own governor and council, and, 
in fact, of practically conducting their government as they 
saw fit. 

On the restoration of the Stuart dynasty in 1660, 
Charles II. sent a commission confirming in his office Sir 
William Berkeley, whom the assembly had previously 
elected governor, and restored the system of royal con- 
trol as it had existed before the death of his father, 
Charles I. 

The first assembly elected in Virginia after the Restor- 
ation was made up mainly of ardent royalists, and began 



40 OUR SYSTEM OF GOVERNMENT. 

at once to curtail the liberties which the colonists had 
hitherto enjoyed. In 1662, the English church was re- 
established and its support secured by an arbitrary sys- 
tem of taxation. The members of the other denomina- 
tions were placed under many disabilities, the Quakers 
and the Baptists being treated with especial severity. A 
permanent tax was levied on all tobacco exported, for 
the purpose of paying the royal officers, who thus became 
independent of future assemblies and of the people. This 
assembly, after taking these measures so hostile to the 
freedom of the colonists, attempted to destroy the system 
of representation itself, in virtue of which it had its ex- 
istence. It first made its own duration indefinite, subject 
only to the right of dissolution on the part of the gov- 
ernor, and then, in the following year disfranchised a 
majority of the freemen of the colony by restricting the 
right of voting to land-holders. The courts also, of which 
the governor and council constituted the highest, were 
made up of justices appointed by the king or by the 
governor and council, and to the different county courts 
was given the power of levying taxes. 

From this time, to the English revolution, 1689, the 
story of Virginia is one of royal injustice and bad faith, 
and of internal commotions that at one time culminated 
in open rebellion. The regular election of the colonial 
legislature was restored in 1676, and in this same year the 
restriction on the right of suffrage was removed, to be 
re-imposed, however, in 1680. Notwithstanding the fact 
that the re-established assembly, with the exception of 
these four years, might be regarded as representing the 
aristocratic land-owners, it generally maintained the atti- 



THE ENGLISH COLONIES. 41 

tude of sturdy resistance to arbitrary and unjust exercise 
of power, whether attempted by the governor or by the 
king, and thus, though remaining directly under royal 
control, was prepared to make the most of the new con- 
dition of affairs brought about by the accession of William 
and Mary ; while, in the people, who had learned to win, 
point by point, with infinite courage and persistence, their 
rights as Englishmen, there was developed the spirit that 
was to make them among the foremost in the struggle 
for national independence. 

Before Virginia could occupy the territory north of the 
Potomac river, a government in that quarter was promised 
to Sir George Calvert, Lord Baltimore. The ocean, the 
40th parallel of latitude; the meridian of the western- 
most source of the Potomac, and a line drawn east from 
Watkins point were to be the boundaries of the new 
province, which received the name of Maryland in honor 
of the queen, Henrietta Maria, wife of Charles I. Sir 
George dying before the grant had finally been made, it 
passed to his eldest son, Sir Cecil Calvert, the second 
Lord Baltimore. 

The terms of the grant were fealty and the payment of 
a nominal rent ; a fifth of all the gold and silver found 
in the province was also to go to the king. The charter 
provided for a resident council to be appointed by the 
proprietor, and required for acts of legislation the advice 
and approbation of a majority of the freemen or their 
deputies ; authority was also given to the proprietor to 
constitute fit and wholesome ordinances as they might be 
needed, provided they did not conflict with the laws of 
England or extend to the life, freehold, or estate of an}' 



42 OUR SYSTEM OF GOVERNMENT. 

emigrant. Lord Baltimore was constituted the owner of 
the territory comprised within the boundaries set forth, 
and this he was to have power to grant out on the princi- 
ple of sub-infeudation and at the same time to confer feu- 
dal titles and dignities ; in the proprietor was also vested 
the power of establishing courts and appointing the 
justices. By one provision of the charter, the Church of 
England was to be protected, but aside from this, the 
general religious affairs of the colonists were left to be set- 
tled by themselves, it being tacitly understood, however, 
that Lord Baltimore, himself a Catholic and seeking for a 
home where Englishmen of this faith might find a refuge 
from persecution, would secure for the members of the 
different Christian denominations within his domain the 
most complete toleration of religious belief and worship. 

A mark of the favor with which Charles regarded the 
undertaking, or of the esteem in which he held Baltimore, 
is found in the covenant that neither he, the king, nor his 
heirs would ever lay any taxes or imposts upon the in- 
habitants of the colony. 

In 1633, between two and three hundred emigrants 
under the leadership of Leonard Calvert, a brother of 
Lord Baltimore, whom he had appointed ,to represent him 
in America, established themselves on the banks of an 
estuary of the Potomac in an Indian village which they 
bought of the natives, and to which they gave the name 
of St. Mary's. 

In 1633, the first legislative assembly, composed of all 
the freemen, convened, but no record of its proceedings 
has been preserved. The jealous independence of the 
colonists, however, is shown by the refusal of the second 



THE ENGLISH COLONIES. 43 

assembly to accept a code of laws, framed and proposed 
by the proprietary, on the ground that the initiation of 
legislation on his part was an infringement upon their 
rights. The third assembly in 1639, at which delegates 
sat side by side with such of the other freemen of the 
province as desired to attend and had not taken part in 
the election of a representative, provided that the future 
legislative bodies of the colony should consist of such 
delegates as the freemen should choose to represent them 
and of those whom the governor, who was appointed by 
the proprietary, might see fit to summon by special writ. 
This body also declared allegiance to the king, affirmed 
the prerogatives of Lord Baltimore as proprietor, and 
asserted for the colonists the rights and liberties of Eng- 
lishmen, and for their representative assemblies such 
powers as were exercised by the House of Commons. 

The struggle between the king and Parliament brought 
faction and discord into the Maryland colony, which, 
owing to the liberal policy of the proprietary, was made 
up of people of nearly every Christian sect and of the 
most divergent political ideas. Baltimore himself was 
naturally inclined to the royalist cause, hence was looked 
upon with suspicion by the victorious Parliament. In 
1648, however, he succeeded in temporarily placating the 
Puritan party by replacing the Catholic governor of 
Maryland, whom he had appointed on the death of his 
brother in 1647, by the Protestant, William Stone, and by 
requiring of the latter an oath not to molest, on account of 
their religion any person who professed the fundamental 
beliefs of Christianity. In the following year, the gover- 
nor and his council of six, three Protestants and throe 



44 OUR SYSTEM OF GOVERNMENT. 

Catholics, and the assembly passed the famous "Act of 
Religious Freedom," by which complete toleration in 
matters of religious worship was secured to all Christians, 
except those who did not accept the doctrine of the 
Trinity. A year later, the legislative assembly which had 
hitherto sat as one body, divided, the representatives 
elected by the people forming one branch, and the mem- 
bers of the governor's council, appointed by the proprie- 
tary, the other. 

In 1 65 i, after the four commissioners whom Parliament 
had appointed to bring the colonies " within the bay of 
Chesapeake" to obedience, had arranged matters in Vir- 
ginia, they turned their attention to Maryland. Governor 
Stone refusing to obey their instructions was deposed, but 
six months later on promising compliance, was reinstated. 
The next year, however, he denounced the commissioners 
and the Puritans generally, and there resulted on a small 
scale a civil war, in which the Puritans were the victors. 
In 1657, Lord Baltimore, having a second time secured 
the good-will and support of Parliament, succeeded in re- 
storing his authority in the province. In 1660, the spirit 
of resistance again broke out, and the House of Repre- 
sentatives declared itself to be the lawful assembly of 
Maryland, that the assent of the proprietary was not 
needed to give validity to its measures, and that it alone 
had" the right to elect the council. This attempt to shake 
off his authority was quickly put down by Lord Baltimore, 
who now had the support of Charles II. The authority 
of the proprietary being fully re-established, the govern- 
ment of Maryland went on in its old form until the 
Revolution of 1688. This event was a signal for the 



THE ENGLISH COLONIES. 45 

colonists to renew their efforts to free themselves of the 
government of the proprietary, at this time Charles Cal- 
vert, who had succeeded to the title and estate of the 
second Lord Baltimore on his death in 1675. 

The efforts of the proprietary to recover control of the 
province were unsuccessful, and in 1 691, the king, William 
of Orange, assumed control of the colony and sent a 
royal governor to America to take charge of the adminis- 
tration of its affairs. From this time until 171 5, Mary- 
land remained a royal province, the governor and council 
being appointed by the king, and the assembly elected by 
the people after the established manner. In this year, 
Charles, the son of the third Lord Baltimore, having re- 
nounced Catholicism, was recognized as the proprietary, 
and the earlier constitution of the colony was restored. 
From this time until the American Revolution, Maryland 
remained under the administrative control of the succes- 
sive Lords Baltimore, although the assembly made fre- 
quent and often successful efforts to increase its own 
power at the expense of their authority. 

The settlement of Massachusetts and, indirectly, of the 
rest of New England was the result of dissatisfaction with 
certain of the doctrines and practices of the established 
church on the part of a large and earnest body of the 
English people, which with many of them resulted in dis- 
sent and separation from it. 

The Puritans were not necessarily dissenters or separ- 
atists. Originally they but advocated reforms within the 
national church, to which they nevertheless professed 
loyalty and obedience ; and this continued to be the atti- 
tude of the more conservative ones of their number. 



46 OUR SYSTEM OF GOVERNMENT. 

But among the Puritans a sect came into existence that 
carried its protest to the extent of separation from the 
established church, whose existence even it also opposed. 
The members of this sect, which held that each religious 
congregation should control and direct all matters per- 
taining to itself, were known as Independents, though 
often in derision called Brownists from the name of one 
of their early preachers. Because of their religious views, 
which were in that age extremely radical, the Independ- 
ents were persecuted with unrelenting hatred and fury ; 
and many of them, being compelled to leave England, 
sought refuge in Holland. 

One congregation, that in 1608 had emigrated in a 
body from Scrooby in Nottinghamshire, after a residence 
of a number of years in Leyden entered into negotiations 
with the London Company with the view of establishing a 
community of their own in the New World. A patent 
was finally secured from the company giving them the 
right to make the settlement within its grant; but James 
I. refused a charter, and they were obliged to be content 
with his promise that he would not interfere with them so 
long as they behaved peaceably. This refusal of the king 
to grant a charter threw the colonists on their own re- 
sources in the matter of establishing and conducting their 
government; but his hostility as manifested in this re- 
spect proved to be infinitely more advantageous to them 
and to the new commonwealth than any mark of royal 
favor possibly could have been. 

In August, 1620, the " pilgrims," for so they had come 
to regard themselves, left Holland for America. The ex- 
pedition started in two vessels. Twice, however, it was 



THE ENGLISH COLONIES. 47 

obliged to turn back, and on September 6, the Mayflower 
alone left Plymouth on its fateful voyage. 

Having reached the shores of America, and being then 
in the present harbor of Provincetown, on November 21 
the little band formed itself in the cabin of the Mayflower 
into a body politic by this voluntary agreement: — 

" In the name of God, amen; We whose names are 
underwritten, the loyal subjects of our dread sovereign 
King James, having undertaken for the glory of God, and 
the advancement of the Christian faith, and honor of our 
king and country, a voyage to plant the first colony in 
the northern parts of Virginia, do, by these presents, 
solemnly and mutually in the presence of God and of one 
another, covenant and combine ourselves into a body 
politic, for better ordering and preservation and further- 
ance of the ends aforesaid ; and, by virtue thereof, to 
enact, constitute, and frame such just and equal laws, 
ordinances, acts, constitutions, and offices, from time to 
time, as shall be thought most convenient for the general 
good of the colony. Unto which we all promise all due 
submission and obedience. In witness whereof, we have 
hereunder subscribed our names at Cape Cod, the 11th 
of November [O. S.], in the year of the reign of our 
sovereign lord King James, of England, France and Ire- 
land, the eighteenth, and of Scotland the fifty-fourth. 
Anno Dom., 1620." 

This instrument was signed by all the men, forty-one in 
number, the seven hired laborers subscribing their names 
with those of their employers, for the new colon}' was to 
know no social distinctions. These with their families, 
numbering one hundred and two souls, constituted the 



48 OUR SYSTEM OF GOVERNMENT. 

little commonwealth that was afterwards to occupy so 
great a place in history. 

On December 21, 1620, the colonists made their final 
landing at a place to which the name of Plymouth had 
already been given by earlier explorers. 

The government of the colony was at first a simple 
democracy ; the governor was elected yearly by the body 
of the freemen, which consisted of the original settlers 
and of such others as they or their descendants saw fit to 
admit to the privileges of citizenship. Although the 
governor was to be subject at all times to the control of 
the freemen, there was, nevertheless, a possible opportunity 
for the exercise of arbitrary power on his part. In 1624, 
this was provided against by a council of five assistants, 
increased in 1633 to seven, which was to exercise the 
executive power jointly with the governor, the latter hav- 
ing merely a double vote. 

All the laws were made and all the taxes levied by the 
whole body of the freemen until 1639, when the size of 
the colony having greatly increased both in territory and 
in numbers, each of the several towns that had been 
formed within its jurisdiction was authorized to send a 
committee, or representatives, to a "general court." 

As the Pilgrims had settled outside the territorial limits 
of the London Company, it became necessary for them to 
secure a new patent from the Council for New England, a 
company which, in 1620, had received a charter from the 
king superseding that of the Company of the West and 
covering the territory between the 40th and 48th parallels 
of latitude. The new patent came in November. 1621 ; 
by it, fifteen hundred acres of land were set aside for pub- 



THE ENGLISH COLONIES. 49 

lie buildings, and each settler was allowed to take up a 
hundred acres ; no limits were set to the extent of the 
colony. The right of the colonists to form a government 
and to make their own laws was recognized and secured, 
so far as the provisions of the patent in this direction 
were of efficacy. 

In 1630, a new patent was granted by the Council for 
New England in which the boundaries of the colony were 
definitely laid down, its limits being the Cohasset river 
on the north, and the domains of Pokanoket on the west. 
This patent, however, reserved to the council the right to 
establish such a government as it might see fit; for- 
tunately, this power was not exercised, and the Plymouth 
colony continued under its simple and democratic gov- 
ernment until its union with Massachusetts in 1691. 

In 1628, the Council for New England conveyed to a 
number of persons, among whom was John Endicott, a 
strip of land extending from three miles south of the river 
Charles and of Massachusetts bay to three miles north of 
every part of the river Merrimac, and westwards to the 
Pacific. These men were representative Puritans, who, 
seeing their efforts to reform the national church not only 
futile, but provoking from the government harsh measures 
to compel conformity to the established system of wor- 
ship, determined to follow the example set by the Pil- 
grims, and to seek religious freedom in America. 

Endicott from his character and influence was selected 
as the man most fit to lead in the work, and having been 
appointed by his associates governor, he and his family 
with a few others set sail in June, 1628, to establish the 
new colony. Early in the following year, the company 



50 OUR SYSTEM OF GOVERNMENT. 

obtained from the king a confirmation of their grant, and 
was now constituted a corporation under the name of 
the " Governor and Company of Massachusetts Bay in 
New England." 

The members, or freemen, of the corporation were au- 
thorized to elect from their own number a governor, 
deputy governor, and eighteen assistants, and to frame 
laws and ordinances for their colonies not repugnant to 
the laws of England. By the ordinances of the company 
there was to be a local governor and thirteen councillors, 
or assistants, for the colony ; the governor and a majority 
of his assistants being appointed by the corporation in 
England. 

Four times a year, the governor of the corporation, the 
assistants and all the freemen were summoned to " one 
great general and solemn assembly," and these " great 
and general courts " were invested with full powers to 
choose and admit into the company as many as they 
should think fit, to elect and to constitute all requisite 
subordinate officers, and to make laws and ordinances for 
the welfare of the company and for the government of 
the lands and inhabitants of the plantations on the other 
side of the ocean, " so as such laws and ordinances be 
not contrary and repugnant to the laws and statutes of 
the realm of England." 

Endicott and his little band arriving safely on the shores 
of Massachusetts bay, joined themselves with a few emi- 
grants who had already settled here and founded the 
present city of Salem. 

In September, 1629, the corporation in England trans- 
ferred the whole government together with the charter 



THE ENGLISH COLONIES. 5 I 

and all its rights and privileges to those of its members 
who were in America, who thereby were constituted a 
body politic with responsibility to the king alone in mat- 
ters pertaining to their government. In October, how- 
ever, the home company appointed John Winthrop gov- 
ernor for the ensuing year, and also named a deputy 
governor and assistants. 

In the following March, Winthrop with seven hundred 
emigrants set sail for Massachusetts. In this expedition, 
Boston, Charlestown, Watertown, and several other adja- 
cent towns had their origin. Winthrop made his home in 
the first-named place, which thus naturally became the 
centre of the political life of the colony. 

On the 19th of October, 1630, a meeting of the com- 
pany in "a great and general court" was held in Boston. 
Less than twenty members of the corporation were in 
America and present, but these admitted one hundred and 
eight of the settlers as " freemen of the colony." It 
being inconvenient for the whole body of the freemen to 
meet four times each year, as the charter required, it was 
provided that they should elect the assistants, and that to 
the assistants should be left the power to elect the gov- 
ernor and deputy governor and to frame the laws. 

In May, 1632, a general court was convened, and an 
oath of fidelity offered to the freemen, binding those who 
took it, among other things, " not to suffer any attempt at 
making any change or alteration of the government, con- 
trary to its laws." Those who refused to take the oath 
were generally looked upon as being hostile to the liberties 
of the colony and as not "to be trusted with any charge 
or command." At the same time it was ordered, " to 



52 OUR SYSTEM OF GOVERNMENT. 

the end that this body of commons may be preserved 
of honest and good men," that none should be admitted 
as freemen to the colony except such as were members 
of some church within its limits. 

At the next meeting of the general court, the election 
of the assistants, or magistrates, as they had come to be 
called, and of the governor was made annual; also, as 
much disaffection existed on account of the levying of 
taxes by the assistants, each town was ordered to elect 
two delegates, and to the representative body composed 
of these, matters pertaining to the public revenue were 
committed. 

The election of these delegates was but the first step. 
Early in 1634, the freemen of the towns chose delegates 
who were to consider in advance the duties of the general 
court, and when the latter body convened in May, it pro- 
vided that thereafter the whole body of freemen should 
be assembled only for the election of magistrates, and 
that to these with the deputies from the several towns the 
powers of legislation and of appointment should be en- 
trusted. Save that suffrage was confined to the freemen of 
the colony, i. e. to such as had been admitted to the cor- 
poration which constituted the body politic, the principle 
of representative government was completely established. 
The magistrates and deputies at first sat together, the 
former claiming, however, the power to veto such of the 
joint measures as might be displeasing to them as a body. 
This arrangement continued until 1644, when the as- 
sembly divided ; the deputies of the people sitting apart 
and forming the lower house of the colonial legislature, 
while the assistants constituted the upper house. 



THE ENGLISH COLONIES. 53 

In 1 641, after a comparatively long period of peace 
and security, the people of Massachusetts looked to put- 
ting their government in a more definite form, and 
adopted as a "body of liberties" what was practically a 
written constitution. By this, all the general officers were 
to be annually chosen by the freemen, and to be paid 
from the common treasury ; the freemen of the several 
towns were to choose their deputies from among their 
own number, or from elsewhere if they saw fit, to serve as 
their representatives in the general assembly for one year ; 
this body was made independent by the provision that it 
could not be adjourned or dissolved but by its own con- 
sent; to the freemen of the different towns was given 
the power to make by-laws and ordinances for their 
local government provided that such town laws were 
not of a criminal nature nor repugnant to the pub- 
lic laws, and that the penalties did not exceed twenty 
shillings for one offence ; also they were given power 
to choose selectmen yearly for arranging the matters 
of the towns according to such instructions as might 
be given to them ; to every man whether freeman' 
or not, the protection of the law was assured, and also the 
privilege extended of attending all public meetings and 
there presenting petitions either in writing or by speech. 
To prevent the possible growth of a feudal or landed 
aristocracy, whose evil effects the colonists had seen and 
felt in England, all land was declared free and alienable, 
and every check against its ready transfer was carefully 
provided against. Security both in property and in per- 
son was carefully guarded ; the provisions in regard to 
slavery were: "There shall never be any bond slaverie, 



54 OUR SYSTEM OF GOVERNMENT. 

villinage, or captivitie amongst us, unless it be lawfull 
captives taken in just warres, and such strangers as will- 
ingly selle themselves or are sold to us. And these shall 
have all the liberties and Christian usages which the law 
of God established in Israel doth morally require. This 
exempts none from servitude who shall be judged thereto 
by authoritie." " If any man stealeth a man or man- 
kinde, he shall surely be put to death." The severity of 
the Levitical law against witchcraft remained, and in mat- 
ters of religion the general spirit of the laws was that of 
intolerance. 

The growth of an independent spirit in the colony kept 
pace with its self reliance in matters pertaining to its in- 
terior regulation. Even before the close of the first half 
of the century, its people had come to look with extreme 
jealousy on any attempt to influence or interfere with 
their power in this respect, and threats of resistance in 
the event of oppression by king or Parliament were 
openly made. On the restoration of the Stuart dynasty, 
Charles II. confirmed the charter of the colony, but or- 
dered that all laws derogatory to his authority should be 
repealed, that justice should be administered in his name, 
and that all land owners of competent estate should be 
allowed to vote. Two years later the general court ex- 
tended the right of suffrage to all freeholders who paid an 
annual tax of ten shillings, provided that they were or- 
thodox in their religious opinion and of good life. Justice 
was also administered in the king's name. To the other 
royal commands, however, obedience was hesitating, and 
in 1663, complaint was made of Massachusetts that "the 
government there had withdrawn all manner of corre- 



THE ENGLISH COLONIES. 5 5 

spondence, as if intending to suspend their absolute 
obedience to the king." 

This with other reports, some true and some false, led 
the king to send a commission to America to regulate the 
affairs of the colony and to enforce obedience. The col- 
onists immediately resolved to nullify the efforts of the 
commission and to defend their charter and their rights 
under it by force if necessary. By dogged persistence, 
and a resistance to the commissioners that was often not 
far from defiance of royal authority, the liberties of the 
colony were preserved for the time being. 

Between 1660 and 1665, Parliament passed a series of 
laws, known as the "Navigation Acts," whose object was 
to give complete monoply of the American markets to 
English merchants and to destroy any competition with 
English manufacturers and ship-owners that might be 
springing up on this side of the water. These laws were 
exceedingly harsh and oppressive, and Massachusetts 
continually violated them. On this ground, a suit was 
brought in the English courts, and, in 1684, the charter 
was adjudged to be forfeited, and the government of the 
colony passed into the hands of the king. 

Early in 1686, a provisional royal government was es- 
tablished over Massachusetts, Maine, New Hampshire, 
and New York. Later in the same year, Andros was ap- 
pointed the governor of all New England by James II. 
At first his jurisdiction included Massachusetts, Plymouth 
and Maine, but in a short time it was extended over 
Rhode Island and Connecticut. 

Under the new state of affairs, the governor had power 
to appoint and remove the members of his council, whose 



56 OUR SYSTEM OF GOVERNMENT. 

assent only was needed to enable him to make all laws 
and levy all taxes. The old assembly of the representa- 
tives of the people was abolished ; the immemorial rights 
of Englishmen were denied to the colonists, and estab- 
lished laws and customs were arbitrarily set aside. The 
spirit of the new government is well set forth in the reply 
of a royal judge to a prisoner who pleaded the Magna 
Charta when the writ of habeas corpus was refused : 
" Do not think that the laws of England follow you to the 
ends of the earth." 

On the eighteenth day of April, 1689, when they had 
learned of the success of the revolution in England, the 
citizens of Boston had the satisfaction of seizing Andros 
and his satellites and immuring them in jail, and of again 
taking their government into their own hands. The 
charter magistrates who had been displaced by Andros 
now joined themselves with the leading citizens and 
awaited the pleasure of the new king ; this delay was a 
grave mistake on their part, for had they at once assumed 
the full exercise of their rights, it is highly probable that 
they would not have been molested or interfered with. 

In May, a convention assembled and declared for the 
governor, deputy governor, and assistants chosen and 
sworn in 1686, but the provisional governing body re- 
sisted, and the question was referred to the people. 

Although nearly all the towns instructed their deputies 
to resume the charter, the obstinacy of those in power 
permitted of a compromise only, for they would not con- 
sent to a final settlement of the government until di- 
rections were received from England. In 1 690, a new 
charter was framed for the colony, which was made also 



THE ENGLISH COLONIES. $7 

to include Plymouth, Maine, 1 Sagadahock and Acadia ; 
five years later, however, that part of Acadia lying east 
of the St. Croix river was ceded back to the Crown. By 
this charter, the governor, lieutenant governor, and the 
secretary were to be appointed by the king and hold office 
during the royal pleasure. The judges were to be ap- 
pointed by the governor with the consent of the council. 
The people, as under the old charter, were to elect repre- 
sentatives who were to constitute the colonial assembly, 
but the governor or king might veto any act of legisla- 
tion. The council, which was to constitute the upper 
house of the legislature, was elected, except in the first 
instance when it was appointed by the king, by the joint 
ballot of its own members -and the members of the repre- 
sentative assembly, this election being subject to the 
negative of the governor. 

From this time until those years immediately preceding 
the revolution of the colonies in 1775, when the political 
history of Massachusetts became an almost essential part 
of the history of the whole country, the colony continued 
under the charter of 1690, although its people pressed 
boldly and steadily upon the royal authority in the as- 
sertion of what they held to be their rights and liberties. 

In 1636, Roger Williams, who had been banished from 
the Massachusetts colony because of the independence of 
his religious convictions, found his way southward into 
the limits of the present state of Rhode Island, and with 



J Maine at this time designated the territory lying between the 
Piscataqua and the Kennebec rivers ; Sagadahock that between the 
Kennebec and the Penobscot, while to the country lying east of the 
Penobscot the name of Acadia was generally given. 



58 OUR SYSTEM OF GOVERNMENT. 

five companions established himself at a place to which, 
in his gratitude to God, he gave the name of Providence. 
The next year, he secured from the Narrangansett chiefs, 
Miantonomoh and Canonicus, a deed of a large domain, 
and made free grants from it to all deserving persons who 
came. In a short time, many who had become restless 
under the illiberality of the laws of the older colonies in 
matters of religious concern were attracted to this settle- 
ment, which was made by its founder " a shelter for those 
distressed for conscience." 

At first the public business was transacted in monthly 
town meetings of the householders and of such others as 
they might admit. In religious matters, complete toler- 
ance prevailed, and to Roger Williams belongs the credit 
of being the first to establish a community in which this 
was a fundamental principle. 

In the year following the banishment of Williams, sev- 
eral who had been active in opposing the controlling in- 
fluence of the clergy in Massachusetts suffered the same 
punishment. A number of the adherents of these exiles 
in their search for a new home were persuaded by Wil- 
liams to settle in the vicinity of Providence, and, having 
through his influence secured from Miantonomoh the gift 
of the island of Rhode Island, they removed thither and 
founded the towns of Portsmouth and Newport. 

In March, 1641, the freemen of this colony "unani- 
mously agreed upon, that the government, which this 
body politic doth attend unto in this island and the juris- 
diction thereof, in favor of our prince, is a DEMOCRACIE, 
or popular government ; that is to say, it is in the power 
of the freemen orderly assembled, or a major part of 



THE ENGLISH COLONIES. 59 

them, to make or constitute just laws, by which they will 
be regulated, and to depute from among themselves such 
ministers as shall see them faithfully executed between 
man and man." 1 In September a patent was obtained 
from England confirming Williams and his fellow- 
colonists in the possession of the lands that had been 
previously purchased by them from the Indians. 

To maintain the independence of the colony, in 1644 
a charter was secured from Parliament, which was then at 
open war with Charles I. This charter endowed the free- 
men of the towns on Narragansett bay " with full power 
and authority to rule themselves and such others as shall 
hereafter inhabit within any part of the said tract of land, 
by such a form of civil government as by voluntary con- 
sent of all, or the greater part of them, they shall find 
most suitable to their estate and condition." Accordingly, 
an assembly of all the freemen of the territory comprised 
within the charter limits was convened in 1647, to frame a 
government for the colony. The legislative power was 
vested in a representative court whose members were 
chosen by the four towns then in existence. The supreme 
executive and judicial power was vested in a president 
and four assistants, likewise chosen by the freemen. 

Owing to a threatened dismemberment of the colony, a 
confirmation of the charter was obtained in 1652 ; and in 
1663, Charles II granted a royal charter securing to the 
people of Rhode Island the rights and liberties that had 
been granted to them by the Long Parliament. Under 
this charter the executive authority was committed to a 



Bancroft, Vol. I. p. 263. 



60 OUR SYSTEM OF GOVERNMENT. 

governor, deputy governor, and ten assistants, elected by 
the freemen collectively ; the legislative power was placed 
in the hands of an assembly composed of deputies from 
the different towns, and the governor, deputy governor, 
and assistants. The charter also declared that " No per- 
son shall at any time hereafter be any ways called in 
question for any difference of opinion in matters of relig- 
ion," and the first regular session of the new assembly 
repeated this declaration. 

The demand made by Andros upon the governor of 
Rhode Island for the surrender of its charter not having 
been complied with, in January of the following year, he 
dissolved its government and established in its place a 
commission of five persons entirely irresponsible to the 
people. On their regular election day, the first of May, 
1689, the people, having learned of the success of the 
Revolution in England, voted to restore the officers whom 
Andros had displaced, but. owing to the fear and inde- 
cision of some of the leading men the old free form of 
government was not fully established until February in 
the following year. 

In 1696, the assembly, hitherto constituting but a single 
body, divided, the deputies from the towns forming the 
lower house, and the governor, deputy governor, and 
assistants the upper house of the colonial legislature. 

From 1690 until the American Revolution, the people 
of Rhode Island enjoyed uninterruptedly the free govern- 
ment established by the charter of 1663, and when the 
colony became a part of the new nation, so endeared had 
this instrument become to them, and so beneficent were 



THE ENGLISH COLONIES. 6 1 

its provisions, that it was retained essentially unchanged 
as a constitution for the State until 1842. 

In 1622, Sir Ferdinando Gorges and Captain John 
Mason received from the Plymouth Company a grant of 
the territory lying between the Kennebec and Merrimac 
rivers. Seven years later, a few settlements having been 
established along the banks of the Piscataqua, and an at- 
tempt made to found a town at York, within the limits of 
the present State of Maine, Mason procured a patent for 
the territory lying between the Merrimac and the Piscata- 
qua, surrendering to Gorges his interest in the district 
lying east of the latter river. 

It was covenanted as a condition of this grant to Mason 
that he should establish in his domains such a government 
" as shall be agreeable as near as may be to the laws and 
customs of the realm of England;" and that if he should 
be neglectful in this, the president and council of the 
company might take the matter in hand. 

The growth of the colony was so slow that it remained 
a burden and a vexation to its proprietor rather than a 
source of profit, as he had hoped. In 1635, Mason ob- 
tained from the Plymouth Company an extension of his 
domains to the south, but on his death soon after, his 
family allowed the colonists to manage their own affairs. 

In 1642, New Hampshire was at the request of its peo- 
ple annexed to Massachusetts, of which it remained an 
integral part until 1679. In this year, the claim of the 
latter province over the territory granted to Mason was 
declared by the king in council to be without foundation, 
and at the same time the power of Mason to establish a 
government under a patent from the Plymouth Company 



62 OUR SYSTEM OF GOVERNMENT. 

was denied, although his heirs were recognized as owning 
the land. As a necessary consequence of these decisions, 
the government of New Hampshire passed into the hands 
of the king. 

For the royal province thus formed, it was provided 
that the executive power should vest in a president and 
council appointed by the king, and to this body was also 
confided the judicial power, subject to an appeal to Eng- 
land ; the legislative power was exercised by the presi- 
dent and council, and representatives chosen by the dif- 
ferent towns. All laws required the approval of the 
president and council and were to remain in force until 
the pleasure of the king should be known whether they 
should stand, be modified, or be disallowed. 

In 1685, New Hampshire was consolidated with Massa- 
chusetts under a single royal governor. Four years later 
on the overthrow of Andros, the people of the province 
assembled in convention to frame a government for them- 
selves ; but in another convention in the following year 
they resolved to re-unite with Massachusetts. This union 
lasted for two years, when another royal government was 
established similar to the one first organized. In 1699, 
New Hampshire was again placed under the same royal 
governor as Massachusetts, but an independent judiciary 
composed of persons interested in the welfare of the 
province was provided. 1 

In 1 741, a separate royal government, similar to those 

^his fact was one of great moment to the people of New Hamp- 
shire who for many years had been resisting in the courts the efforts 
of the heirs of Mason to collect rents or gain possession of lands that 
had long been occupied. This difficulty between the heirs of the orig- 



THE ENGLISH COLONIES. 63 

that had previously existed was again established for New 
Hampshire, and this continued until the Revolution. 

In 1 63 1, the valley of the Connecticut river was granted 
to the Earl of Warwick and from him passed to others, 
among whom was the famous patriot, John Hampden. 
These proprietors took no steps toward establishing a 
colony in their possessions, and in 1633 the people of 
Plymouth established a trading post at Windsor. Two 
years later, a party from Massachusetts began a settlement 
at Wethersfield, and in 1636 a large company from the 
same province laid the foundations of the city of Hart- 
ford. These three towns, which from their origin were 
closely connected, in January, 1638, framed and adopted 
as the constitution of their common government the 
''Fundamental Orders of Connecticut." This we may re- 
gard as the first complete written constitution of which 
history has record. 

By these " Orders" the supreme power of the common- 
wealth was entrusted to a general court composed of a 
governor and magistrates chosen by the whole body of 
the freemen, and deputies elected by the different towns. 
The governor and magistrates were chosen yearly, but 
the deputies were elected for each term of the general 
court, which regularly met twice each year. Each of the 
three towns was allowed four deputies, and new towns on 
becoming members of the colony were to be represented 
by such a number as the court might deem just. 



inal proprietor and those to whom they had assigned their claims on 
the one side, and the occupiers of the soil on the other, at times led to 
almost open defiance of the roj'al authority, and, though practically 
compromised in 1746, was not finally settled until 17S7. 



64 OUR SYSTEM OF GOVERNMENT. 

In the oaths of fidelity taken by the freemen and in 
the oaths of office, faithfulness to the commonwealth and 
jurisdiction of Connecticut was required, of no other 
sovereign was there made mention. From the beginning, 
the colony assumed the position of an independent 
republic. 

In the spring of 1638, another body of Puritans from 
Massachusetts established themselves at New Haven. 
Here they covenanted with one another that " all of them 
would be ordered by the rules which the scriptures held 
forth to them." On June 4 of the following year, the 
people, having assembled in " a spacious barn," re-affirmed 
this resolution and, among other things, ordered that the 
freemen of the colony should be chosen only from church 
members ; at the same time a committee of twelve were 
appointed who were to choose seven from among them- 
selves to organize a government. 

These "seven pillars" provided that the people should 
elect yearly a governor and magistrates in whose hands 
the executive and judicial powers should be placed ; of a 
legislature there was no need, as their laws were to be 
found in the Bible. In the following year, two other set- 
tlements were founded near New Haven with governments 
of a similar nature and in 1643 were incorporated with 
it. Like the Connecticut colony, New Haven never 
formally recognized any earthly authority superior to its 
own. 

From this time the progress of both colonies was rapid 
and uninterrupted. Connecticut escaped troubles like 
those that afterwards befell New Hampshire by purchas- 
ing at an early date the claims of those to whom the Earl 



THE ENGLISH COLONIES. 65 

of Warwick had assigned his grant. At the restoration 
of Charles II., Connecticut was prompt in acknowledging 
him as king and thus won his favor. The charter which 
the colony asked from this monarch to secure its rights, 
and which was granted in 1662, was of the greatest lib- 
erality. New Haven was now included in the limits of 
Connecticut, and the territory of the colony was declared 
to extend from the Narragansett river to the Pacific. The 
right of the colonists to govern themselves was fully con- 
firmed, and they were allowed to exercise every power, 
administrative, legislative, or judicial, without appeal to 
England, or interference from that country. By the terms 
of this charter Connecticut was, in fact, recognized as 
practically independent in all matters pertaining to its 
government. 

In 1686, Connecticut, with the other colonies of New 
England, was deprived of its charter rights and made 
subject to the rule of a royal governor, but three years 
later, on the overthrow of Andros resulting from the fall 
of his obstinate and tyrannical master, James II., the char- 
ter government was again resumed, and though attacked 
again on several occasions, was maintained so long as the 
country remained subject to England. 

The Dutch were the first European settlers of New 
York and New Jersey, to which they gave the name of 
the New Netherlands. The Swedes originally colonized 
Delaware, but in 1655, after New Sweden had maintained 
its independence for seventeen years, it succumbed to the 
Dutch and became subject to their jurisdiction. 

The English watched with great jealousy these acquisi- 
tions by the Dutch and the increase of their colonies in 
5 



66 OUR SYSTEM OF GOVERNMENT. 

population and wealth, and as early as 1621 laid claim to 
the territory held by Holland through the discoveries of 
Hudson. 

In 1664, Charles II. in harmony with the spirit of ag- 
gression with which England and Holland treated each 
other's commercial interests, and moved undoubtedly by 
the desire to make the English possessions continuous on 
the Atlantic coast, granted the New Netherlands together 
with Long Island and the Sagadahock territory to his 
brother, the Duke of York, afterwards King James II. 
Early in September, 1664, the Dutch at Manhattan 
surrendered to an English fleet that had appeared in 
the harbor, and a few days later those at Fort Orange, 
which was on its capture re-named Albany, followed the 
example. In October, the surrender of the Swedes 
and Dutch of Delaware gave to England the posses- 
sion of the territory of the thirteen original states of 
the American Union. The Duke of York, however, did 
not exercise control over the vast tract thus acquired, for 
in the preceding June he had assigned to Lord Berkeley 
and Sir George Carteret the territory between the Hudson 
and the Delaware rivers to constitute an independent 
province under the name of New Jersey. 

In the government established for the province of New 
York, the people had no part; the proprietor appointed 
a governor and council, and in them were vested the 
highest executive and judicial powers, and, with the 
judges of the court of assizes whom he appointed and 
who held office at his will, the governor exercised supreme 
legislative power. 

This government, arbitrary in form, was, as administered 



THE ENGLISH COLONIES. 67 

by its first two governors, generally mild and just. But 
occasions for discord were not wanting, and in 1669 and 
1670, the people of several of the towns openly resisted 
the levy of taxes made by the governor and council and 
asked for their rights as Englishmen. Their demands, 
however, were of no avail, for the Duke of York, as he 
clearly demonstrated when he became king, was a 
thorough believer in arbitrary government. 

In 1673, the Dutch, between whom and the English a 
war had broken out, regained possession of New York 
and again established their authority in this province, but 
by a treaty of peace in the year following, it was restored 
to England. 

In 1683, owing to the spirit of resistance to arbitrary 
taxation that was continually increasing throughout the 
province, the Duke of York instructed his newly ap- 
pointed governor, Thomas Dongan, to call a general as- 
sembly of representatives elected by the freeholders. In 
October the members of this body met, and by their first 
act declared their rights and liberties as Englishmen. 
''Supreme legislative power," they asserted, "shall for- 
ever be and reside in the governor, council and people, 
met in general assembly. Every freeholder and freeman 
shall vote for representation without restraint. No free- 
man shall suffer but by judgment of his peers ; and all 
trials shall be by a jury of twelve men. No tax shall be 
assessed on any pretence whatever, but by the consent 
of the assembly. No seaman or soldier shall be quar- 
tered on the inhabitants against their will. No martial 
law shall exist." 1 A further provision secured toleration 
Bancroft, Vol. I, p. 5S2. 



68 OUR SYSTEM OF GOVERNMENT. 

to all Christian believers to whatever denomination or 
sect they might belong. The proprietor assented to 
these declarations, but in 1685, shortly after he had 
ascended the throne as James II., he abolished the as- 
sembly and deprived the colony of the liberty that it 
had for so short a time enjoyed. 

New York, having become a royal province through its 
proprietor becoming king, was in 1688 placed, as the 
New England colonies had previously been, under the 
control of Andros, a governor appointed by the Crown. 
On receiving news of the revolution in England, the peo- 
ple rose against the Andros government under the lead- 
ership of Jacob Leisler, who assumed authority over the 
province in behalf of the new king, William of Orange. 
In March, 1691, the royal governor appointed by Wil- 
liam arrived, and Leisler, who had been passionate and 
headstrong, was arraigned for treason together with sev- 
eral of his followers. In May of the following year, the 
insurgent leader, whose errors had sprung from too great 
a zeal in behalf of King William himself, was, with his 
son-in-law, executed as a traitor. 

In the royal government framed for New York in 1691, 
there were a governor and council appointed by the king, 
who with a house of representatives elected by the peo- 
ple constituted the assembly. At the first meeting of 
this body, it followed the example of the assembly of 
1683, and asserted that the supreme legislative power of 
the colony vested in itself, and also that no taxes should be 
levied in the province " on any pretence whatsoever " but 
by the act and consent of the representatives of the peo- 
ple. In 1797, this declaration was vetoed by the king, 



THE ENGLISH COLONIES. 69 

but the principles asserted were stubbornly maintained. 
From this time until the Revolution, the struggle between 
the representatives of the people seeking to extend their 
liberties and the royal governors endeavoring to restrict 
them was almost continuous, and in many respects were 
remarkably similar to the early contests between the Par- 
liament and the Crown. 

New Jersey was, as we have seen, originally a part of 
the New Netherlands and passed to the English on the 
seizure of this province by Charles II. 

The Duke of York, whom the king had made the pro- 
prietor of the New Netherlands even before it was ac- 
quired, in 1664 granted out that portion of it lying be- 
tween the Hudson and the Delaware rivers to Lord John 
Berkeley and Sir George Carteret under the name of Nova 
Ceserea, or New Jersey. This grant included not only 
the power of governing and ruling and of establishing 
such laws as they might deem necessary provided they 
were " agreeable to the laws, statutes, and government of 
the realm of England," but also the ownership of the soil 
itself. 

In the government established by the proprietors, the 
executive power was vested in a governor appointed by 
themselves, and a council of from six to twelve members 
appointed by the governor ; to the people was granted 
the right of electing at least twelve representatives, and 
these with the governor and council constituted the legis- 
lative assembly. The proprietors retained the right of 
vetoing any act of the assembly and of appointing the 
judicial officers. Freedom from taxation by any authority 
other than that of the assembly was promised, tolerance 



JO OUR SYSTEM OF GOVERNMENT. 

in matters of religion secured, and land was to be held by 
the payment of a moderate quit-rent, which, however, was 
not to be collected until 1670. Within these limits, the 
authority of the assembly was practically supreme. 

At the time of the capture of New Amsterdam, (New 
York City), in 1664, the commander of the English 
forces assumed control of the entire territory in the name 
of the Duke of York, and, ignorant of the grant to Berke- 
ley and Carteret, promised security of possession to those 
who might purchase lands of the Indians in what after- 
wards became New Jersey. 

A large number of colonists, relying on this assurance, 
secured tracts of land along the coast and, on the estab- 
lishment of the proprietary government, refused to recog- 
nize its authority. 

The assembly convened for the first time in 1668; in 
this year it held two sessions ; but owing to the internal 
difficulties of the province it did not meet again for seven 
years. In 1672, an assembly composed of the inhabitants 
of the disaffected settlements came together, but this 
body was not recognized by the governor and council. 
This unauthorized assembly appointed a president to act 
in the place of the governor, but on the situation of af- 
fairs being made known in England, messages were re- 
ceived from the king and the Duke of York that checked 
the incipient rebellion and rendered the colonists obedient 
to the authority of the proprietors. 

In 1672, the New Netherlands was reconquered by 
the Dutch, and when it reverted to the English in 
1673, the Duke of York confirmed his grant to Berkeley 
and Carteret, and in accordance with an agreement be- 



THE ENGLISH COLONIES. 7 1 

tween them assigned the western part of New Jersey to 
the former, and the eastern part to the latter. Berkeley in 
1674 sold West New Jersey to William Penn and four 
other Quakers, who immediately established settlements 
there. In 1682, a company of twenty-four, among whom 
was Penn, acquired East New Jersey from the heirs of 
Carteret. The local governments of each of the divisions 
remained practically as they were in the original province. 

In 1687, both the Jerseys were annexed by the king to 
New York and placed under the governorship of Andros. 
On the overthrow of Andros the connection of the 
provinces with New York ceased ; but discord among the 
proprietors prevented the establishment of any effective 
government for the Jerseys, and their condition became 
but little better than anarchy. In 1702, the people peti- 
tioning against the authority of the proprietors, and their 
claims being shortly afterwards surrendered to the Crown, 
East and West New Jersey were united as a royal 
province. 

Under the government now provided, New Jersey had 
the same governor as New York, but it had its own coun- 
cil of twelve members appointed by the Crown ; twenty- 
four representatives, each of whom was obliged to possess 
a thousand acres of land to be eligible, were elected by 
the freeholders, and these with the governor and council 
constituted the assembly as in the original proprietary 
government. 

The acts of the assembly were subject to veto both by 
the governor and by the Crown. The governor and 
council acted as a court in chancery, appointed all offi- 



72 OUR SYSTEM OF GOVERNMENT. 

cers, military and civil, determined all salaries, and or- 
ganized all the courts. 

From the establishment of the royal government until 
the Revolution, the political history of New Jersey is one 
of almost continual conflict between the representatives of 
the people and the royal governor ; the former seeking 
to establish and maintain the principles of free govern- 
ment, the latter to extend the prerogatives and power of 
the gubernatorial office. 

The territory of the present state of Delaware was set- 
tled by the Swedes in 1639, under the name of New 
Sweden, but passed in 1655 into the control of the Dutch 
and became a part of the New Netherlands whose chang- 
ing fortunes it shared until 1682, when it was sold by the 
Duke of York to William Penn. For several years " the 
three lower counties " sent delegates to the Pennsylvania 
assembly and remained a constituent part of that province. 
In 1 69 1, they elected a local assembly and continued it 
for two years, but not until 1703 was a final division 
effected. Under the new order of affairs, the now distinct 
province elected yearly its own assembly and had a gov- 
ernor appointed by the proprietor. This form of govern- 
ment continued until 1776, when the three lower counties 
framed a constitution and assumed the name of Delaware. 

In 1680, William Penn obtained from Charles II. a grant 
of territory lying to the west of the Delaware river. To 
this territory the king himself insisted on giving the name 
of Pennsylvania. 

The eastern boundary of the province as described in 
the charter extended from a point on the Delaware twelve 
miles northward of Newcastle, along the river to the 43d 



THE ENGLISH COLONIES. 73 

parallel. The southern boundary, as set forth, was 
impossible, and it was only in 1750 after long disputes 
and litigation between the proprietors of Pennsylvania 
and of Maryland, that the matter was finally settled. 
In 1763-7, Mason and Dixon, two surveyors, fixed and 
marked out between the two provinces 246 miles of the 
boundary that afterwards came to be so well known as 
the dividing line between the free and the slave states. 
Westward, Pennsylvania was to extend five degrees of 
longitude. In 1682, as has been previously pointed out, 
Penn added Delaware to his dominions. 

By the terms of the charter, which was originally drawn 
up by Penn, the proprietor was constituted the governor 
of the province and was given power to make laws with 
" the advice, assent, and approbation of the Freemen of 
said countrey " or their deputies. These laws were not 
to be " repugnant or contrary, but, as conveniently as 
may be, agreeable to law and statutes and rights of this 
our kingdom of England." It was also required that they 
should be sent within five years from the time that they 
were made to the king for his approval, and that he might 
within six months after receiving them set them aside by 
his negative. 

Among other things of less importance, the proprietor 
was authorized to appoint judges and other officers and 
to establish courts of justice, from which, however, an 
appeal could in all cases be taken to the Crown. 

It was further provided that no law of primogeniture 
should exist, and that taxes in every case should be 
levied only with the assent of the proprietor and of the 
assembly, or by act of Parliament. 



74 OUR SYSTEM OF GOVERNMENT. 

To the settlers in his province Penn promised by pro- 
clamation, — " I hope you will not be troubled at your 
chainge and the king's choice ; for you are now fixt at 
the mercy of no governor that comes to make his fortune 
great. You shall be governed by laws of your own 
makeing, and live a free, and if you will, a sober and in- 
dustreous people. I shall not usurp the right of any, or 
oppress his person. ... In short, whatever sober 
and free men can reasonably desire for the security and 
improvement of their own happiness, I shall heartily com- 
ply with." 

In 1682, Penn, who a year before had sent a deputy 
governor to Pennsylvania, came thither with a large body 
of Quaker colonists. To the first assembly of the deputies 
he proposed a frame-work of government and a body of 
laws, declaring, — " You may amend, alter, or add : I am 
ready to settle such foundations as may be for your hap- 
piness." These, modified in some respects, were accepted 
by the representatives of the people. By them it was 
provided that there should be a governor, the proprietor, 
a council, whose members should be elected for three 
years, one-third annually, and an assembly of representa- 
tives of the people, chosen each year. Every freeman 
who paid taxes was to have the right of suffrage. Origi- 
nally it was left to the governor and council to propose 
and publish measures of legislation, and the assembly was 
designed to register the will of the people on the measures 
proposed, but in 1683, the assembly began to originate 
bills of its own. 

Practically all the governmental power was placed in 
the hands of the people ; all the officers except the 



tHE ENGLISH COLONIES. 75 

governor were appointed by them or their representa- 
tives, and the governor himself could exercise no power 
except that of veto without the consent of his council. 
Religious freedom was secured ; peacemakers were chosen 
in each of the counties into which the province was 
divided, who were to preserve good fellowship by settling, 
without recourse to law, disputes and differences of a 
minor nature ; schools were established ; trial by jury was 
preserved, and in harmony with Penn's kindly and just 
treatment of the natives it was provided that in the trial 
of an Indian accused of a crime or of a matter in dispute 
between a white man and a red man the jury should be 
composed of six of each race. 

In 1648, Penn returned to England, leaving the council 
to govern the province ; the assembly, jealous even of the 
nominal power that the proprietor had retained and of 
his general ownership of the land, was soon at strife with 
this body, and a deputy governor whom Penn had seen 
himself compelled to appoint in 1686 soon quarreled with 
both the assembly and the council and, after holding 
office for nine months, withdrew from his thankless task. 

The Revolution of 1688 in England was disastrous to 
Penn whose friendly relations with Charles II. and James 
II. were now remembered to his disadvantage. In 1691, 
Pennsylvania was placed under the control of the royal 
governor of New York, with whom, however, its assembly 
was always at variance. In 1694, the province was 
restored to Penn who re-established his authority without 
opposition, and in 1699 he came to America with the 
intention of spending the remainder of his life here, but 
reports that Parliament intended to abrogate all the 



y6 OUR SYSTEM OF GOVERNMENT. 

colonial charters caused him to return to England to 
avert if possible" the threatened calamity. 

Before leaving his province, Penn, in order to render 
the colonists better contented, enlarged their privileges at 
the expense of about all of the little power that he up to 
this time had retained. The members of the council were 
now to be appointed by the proprietary and were to share 
with him the executive power; the assembly was to have 
control of the judiciary and to originate all legislative 
acts, which were, however, to be subject to the veto of 
the governor. The sessions of the assembly were to be 
determined by itself and not to be subject to adjournment 
by the executive power; religious liberty was again 
reaffirmed, and public office and employment opened to 
all who professed Christianity; at the same time, per- 
mission was given to the " three lower counties " to 
establish an assembly of its own. 

Notwithstanding the almost complete powers with 
which the assembly was endowed, it was soon at strife 
with the deputy governor. This opposition to the pro- 
prietary rule was greatly increased after the death of 
Penn in 1718 and the assumption of his rights in the 
province by his heirs. From this time until the Revolu- 
tion, the contest between the assembly and the successive 
proprietary governors makes up the political life of 
Pennsylvania. 

In 1663, the territory lying between the 36th degree 
north latitude and the river San Matheo, in whose north- 
ern part settlements had already been established, was 
granted to a company of eight persons, who were con- 
stituted its proprietors and sovereigns on simply the con- 



THE ENGLISH COLONIES. 7J 

dition of allegiance to the British Crown. In a second 
charter from the king in 1665, the parallels of 36 de- 
grees, 30 minutes, and 29 degrees, north latitude, were 
established as the boundaries of the province. 

The proprietors had great expectations of the new 
nation that they hoped to found beyond the seas and de- 
puted one of their number, a statesman of consummate 
skill, Sir Ashley Cooper, afterwards Lord Shaftesbury, to 
draw up for it a framework of government. Cooper as- 
sociated with himself John Locke, the philosopher, and 
they together elaborated an exceedingly complex instru- 
ment which they called "The Fundamental Constitutions 
of Carolina." These " Constitutions," which were ac- 
cepted by the company, were completely impracticable 
and a continual source of quarrels and difficulties between 
the proprietors and the colonists. The whole scheme 
was feudal in its nature. The eldest proprietor was, as a 
count, to exercise royal power, and the others were to 
hold such offices as Admiral, Chancellor, High Steward, 
etc. ; below these there were to be nobles of different 
ranks, freeholders, and laets, or serfs attached to the soil ; 
the land was to be held on various tenures, and a parlia- 
ment and grand council were provided for, that were to 
be accessible only to the nobles and the large freeholders. 
The only sensible thing in this product of learning without 
understanding was the clause providing that all religions 
should be tolerated. 

Shortly after the Carolina grant was made in 1663, a 
government of a wise and simple form was organized for 
the colony already existing in northern Carolina by 
Governor Berkeley of Virginia, who was one of the 



78 OUR SYSTEM OF GOVERNMENT. 

grantees. When this government had become fully 
developed and accepted by the proprietors a few years 
later, it consisted of a governor appointed by the proprie- 
tors, a council of twelve, six named by the proprietors 
and six elected by the assembly, and an assembly made 
up of the governor, the council, and twelve representatives 
chosen by the freeholders. In 1670, the proprietors 
endeavored to force upon the people the absurd " Funda- 
mental Constitutions," and, as a result, reduced the 
province almost to the condition of anarchy. After six 
years of confusion the old simple form of government was 
restored. 

In 1679, owing to the attempts to enforce the "Naviga- 
tion Acts," 1 and to the efforts of Parliament to derive a 
revenue from the province, aggravated by interference 
with the free election of the members of the assembly, an 
insurrection broke out and the governor with those mem- 
bers of the council who had been appointed by the pro- 
prietors were imprisoned and afterwards banished. The 
acts of Parliament were disregarded, the assembly elected 
a governor, and, for the time being, an independent 
government was practically established. In 1683, another 
governor was appointed by the proprietors, but he, prov- 
ing rapacious and incompetent, was in his turn deposed 
and exiled, and again the people through the assembly 
assumed control. In 1689, the proprietors again ap- 
pointed a governor, and four years later when southern 
Carolina was also placed under his administration, he 
removed to that province. 



'The nature of these Acts is set forth in the following chapter. 



THE ENGLISH COLONIES. 79 

Until 1705, the northern colony was put in charge of 
deputy governors appointed by the governor who had his 
residence at Charleston and who directly administered the 
affairs of the southern province. 

In 1704, the proprietors endeavored to establish the 
Church of England in Carolina and to compel conformity 
to its system of religious worship ; this, the independent 
and turbulent settlers of the northern colony resisted, and 
confusion again prevailed; for four years, from 1706 to 
1 7 10, there were two distinct governments, one represent- 
ing the proprietors and the other the popular party, that 
claimed jurisdiction over this sparsely settled region ; 
strife and anarchy prevailed until 1729, when through the 
sale of Carolina to the Crown it became definitely a royal 
province. At the same time that this change was effected, 
the province was divided and became North Carolina and 
South Carolina. 

In the royal government of North Carolina there were 
a governor and council appointed by the king and an as- 
sembly elected by the people ; these three branches to- 
gether constituted the legislature. The governor could 
convene and dissolve this body at his pleasure and had a 
negative on all the measures that it passed ; he had also 
the power of appointing civil and military officers. The 
laws of the province were subject to the disapproval of 
the Crown. 

Under its new government the condition of the colony 
became more tolerable, but the people and the assembly 
ever showed themselves quick to resent and resist oppres- 
sion in every form, and were in frequent strife with the 
royal authority. In North Carolina the execution of the 



80 OUR SYSTEM OF GOVERNMENT. 

Stamp Act of 1766 was stubbornly resisted, and a royal 
vessel having the stamps on board was not permitted to 
enter port. 

In 1 77 1, the settlers of this restless colony were in arms 
resisting the oppressions of the royal governor and his 
officials, and the resolution adopted at Mecklenburg in 
May, 1775, by which the people of that section declared 
the authority of king and Parliament to be annulled, antici- 
pated the declaration of independence by the Nation by 
more than a year. 

In 1670, emigrants sailed from England to establish a 
colony in southern Carolina. Having reached the Ameri- 
can coast, they entered a bay formed by the confluence of 
two rivers, to which they gave respectively the names of 
Ashley and Cooper in honor of the leading proprietor. 
They landed and began to build a town, but two years 
later deserted this location for a more advantageous site 
at the point of the peninsula formed by the rivers ; the 
town founded here was named Charleston after the reign- 
ing king, Charles II. 

The colonists brought with them a copy of the " Fund- 
amental Constitutions," but shortly after landing they 
met in convention and framed such a government as they 
judged adapted to their circumstances and needs. The 
few parts of the "grand model" that could wisely and 
safely be put into practice they accepted, the rest was 
ignored. 

This convention selected five members for the grand 
council to act with the five who had been appointed by 
the proprietors ; this council had a negative on the execu- 
tive power, and with the governor appointed by the pro- 



THE ENGLISH COLONIES. 8 1 

prietors and twenty delegates elected by the people con- 
stituted the legislature. The following year a modified 
form of the " Constitution" was forwarded to Carolina, but 
met with no less opposition than had the original scheme. 
Thus at its very inception, the colony was at strife with 
its founders and patrons. The struggle between the 
popular party and the proprietary officials was continuous 
and bitter until 1674; in this year an honest and sensible 
executive was appointed, and during his administration, 
which continued nine years, peace and quiet prevailed. 
On the dismissal of this governor from office because he 
favored the popular party, strife again broke out, which 
was intensified by the efforts of the mother country to 
collect duties in the province. In 1686, the proprietors 
appointed a brother of one of their number governor; his 
endeavors to enforce compliance with the " Fundamental 
Constitutions " led him also into a struggle with the as- 
sembly, which resulted in 1689 in his banishment from the 
colony. For three years after this, the people of south- 
ern Carolina controlled their own government independ- 
ently of any external authority, but in 1692, the governor 
of the northern colony was sent thither ,to re-establish the 
supremacy of the proprietors. The people again as- 
sumed the attitude of opposition, and in the year follow- 
ing the proprietors voted "that, as the people have de- 
clared they would rather be governed by the powers 
granted by the charter, without regard to the Funda- 
mental Constitutions, it will be for their quiet and for the 
protection of well-disposed persons to grant their re- 
quest." This attitude of the proprietors disposed of one 
prolific cause of contentions, but others still remained ; 



82 OUR SYSTEM OF GOVERNMENT. 

the claim which the proprietors maintained of the right 
to legislate for the colony and to collect rents from the 
settlers, and the existence of factions among the colonists 
themselves afforded frequent occasion for quarrels and 
strife. 

In 1 719, an open insurrection against the authority of 
the proprietors broke out, and the assembly elected a 
governor and a council of its own. In the following 
year, the king, George I., appointed a provisional gover- 
nor for the colony and the authority of the company was 
brought to an end, though its rights were not formally 
transferred to the Crown until 1729. 

The royal government of South Carolina was similar to 
that of North Carolina, and though the former colony 
was frequently at strife and in open opposition to the 
Crown officials, it did not suffer from the confusion and 
anarchy that prevailed in the latter. 

In 1732, James Oglethorpe secured for a corporation a 
grant for the term of twenty-one years of all the lands 
between the Savannah and the Altamaha, and from the 
sources of these rivers westward to the Pacific. 

The purpose of Oglethorpe in establishing a colony 
here was to create an asylum where insolvent debtors, 
towards whom the laws of England were very harsh, and 
those fleeing from religious persecution might find refuge. 
The members of the corporation, or the trustees of this 
vast tract, to which was given the name of Georgia, and 
which was to be "held in trust for the poor," were at 
their own request not allowed to receive any grant of 
land or any profit whatever from the undertaking. All 
legislative and executive functions, and the power to 



THE ENGLISH COLONIES. 83 

establish courts were by the charter vested in the trustees 
or a council which they might appoint. 

In January, 1733, the city of Savannah was founded by 
Oglethorpe and a band of immigrants who had left Eng- 
land the preceding November. The colony from this 
time increased quite rapidly in population, but from many 
causes did not greatly prosper. The relations of the 
governing power with the people for a long time was 
generally harmonious, but disagreements finally arose, 
and, in 1752, the board of trustees, which a few years 
previously had placed the control of the colony in the 
hands of a " President and Assistants of the County of 
Savannah," surrendered their power to the Crown, and 
Georgia became a royal province. Under the new gov- 
ernment there was a governor and council appointed by 
the king and a house of delegates chosen by the people. 
The powers of the governor were broad ; besides his 
executive functions he exercised high judicial authority, 
and could also suspend any member of his council. For 
the members of the house of delegates and for the electors 
there was a property qualification. The chief prerogative 
of the assembly was that of originating bills for grants of 
public money. This remained the government of Georgia 
until the Revolution. 



CHAPTER IV. 

THE GROWTH OF POLITICAL UNION BETWEEN THE 
COLONIES. 

The different English colonies in America were politi- 
cally connected only through their common dependence 
on the mother country ; but, though at times jealous and 
discordant, they never regarded one another as foreign 
countries, nor did the inhabitants of the most widely 
separated sections look upon one another as strangers. 
As the character of the colonies passed from that of 
scattered settlements to that of general and practically 
continuous occupation of the territory within their respect- 
ive limits, there grew up a homogeneous people, bound 
together by a community of political ideas which were 
the outgrowth of the English constitution and the body 
of the common law. 

The first definite move towards a political union was 
made in 1637, when the Connecticut colony, fearing en- 
croachments upon their institutions by the home govern- 
ment and seeking concert of action against the Dutch and 
Indians, requested that a meeting might be called to 
agree upon articles of confederation between the colonies 
of New England. 

After delays arising from various causes, in 1643, pro- 
tection or even advice from England being precluded by 

(84) 



UNION BETWEEN THE COLONIES. 85 

the struggle between Charles I. and Parliament, and the 
attacks of the Indians showing plainly the need of united 
effort, the representatives of Massachusetts, Plymouth, 
Connecticut, and New Haven, completed articles of con- 
federation for the "United Colonies of New England." 
These articles purported that the colonies entered into a 
firm league of offense and defense, mutual advice and 
succor, " both for preserving and propagating the truths 
and liberties of the gospel, and for their mutual safety and 
welfare." 

Everything pertaining to the confederacy and its pur- 
poses was left to a general assembly composed of two 
commissioners from each colony, and the concurrence of 
three-fourths of these commissioners was required to pass 
any measure. This council really had no governmental 
power, its functions being merely to give advice and 
direction. 

This confederation lasted forty years and clearly 
demonstrated to the colonists the need of concerted 
action and of a more comprehensive union, and, what was 
of still more importance, it made them conscious of the 
feeling already existing, that they were one people, with 
a common welfare and a common destiny. 

Although the consciousness of the fact that they were 
one people grew clearer and clearer, and various plans for 
a new confederation were proposed, not until 1754 did a 
definite movement in this direction take place. In that 
year, commissioners from every colony north of the 
Potomac met at Albany to concert measures of defense 
against the attacks of the French and their Indian allies, 



86 OUR SYSTEM OF GOVERNMENT. 

and to treat with the Six Nations and the tribes associated 
with them. 

By this convention a committee was appointed to draw 
up a constitution for a perpetual confederacy of the con- 
tinent. Franklin, who was a member of the convention, 
presented a sketch of a plan already prepared by him, 
and, his project being approved, he was deputed to make 
a draft of it. By this plan, the king was to name and 
support a governor-general who should have a negative 
on all the laws, and appoint all the military officers ; the 
people of the colonies through their legislatures were to 
elect triennially a grand council that was to legislate and 
have power over certain matters specified in the articles, 
which pertained to the colonies collectively. The system 
proposed did not find acceptance with the people of the 
colonies or the English government. On the one side, 
the attachment of each colony to its own government 
repelled the idea of effective central power, and on the 
other, the English statesmen foresaw that a definite union 
of the colonies would, sooner or later, lead to their actual 
independence. 

Moved by the short-sighted selfishness of the manu- 
facturers, ship-owners, and merchants of Great Britain, 
Parliament at an early day entered upon the policy of 
arbitrarily forcing American trade into English channels 
and of checking or destroying such industries in the col- 
onies as were thought to compete with those of the 
mother country. 

In 1 65 1, an act of Parliament required all colonial 
exports to England to be shipped in American or English 
vessels ; another act passed in 1660, required that all the 



UNION BETWEEN THE COLONIES. 87 

exports, with a few exceptions, from the colonies should 
not be shipped to any other country than England or to 
an English colony ; and three years later it was further 
provided, that all imports into the colonies should be from 
England or an English colony. 

The "Navigation Acts" were followed by parliamentary 
interference with the trade between the colonies and with 
their domestic industries. Laws of this nature were so 
numerous and so various that but a few examples to 
show their arbitrary and oppressive nature can be given 
here: 1 In 1672, duties were levied on the export and 
import from one colony to another of many articles in 
general use; in 1699, Parliament provided that "After 
the first day of December, 1699, no wool, or manufacture 
made or mixed with wool, being the produce or manu- 
facture of any of the English plantations in America, 
shall be loaden in any ship or vessel, upon any pretence 
whatsoever — nor loaden upon any horse, cart, or other 
carriage to be carried out of an English plantation to any 
other of the said plantations, or to any other place 
whatsoever." 

In 1 7 19, a bill was introduced into Parliament to forbid 
all manufacture of iron in America ; this, however, failed 
to become a law owing to the strong opposition aroused 
in the colonies, but in 1750 a measure was passed pro- 
viding among other things, — "That from and after the 
Twenty-fourth day of June, one thousand seven hundred 
and fifty, no Mill or other Engine for Slitting or Rolling 
of Iron, or any Plateing Forge to work with a Tilt Ham- 



J See Bancroft Vol. II. pp. 79-85, Vol. III. Chap. IX. 



88 OUR SYSTEM OF GOVERNMENT. 

mer, or any Furnace for making Steel, shall be erected, 
or after such Erection continued in any of His Majesty's 
Colonies in America;" the Act then goes on to declare 
that any person violating this provision shall forfeit the 
sum of two hundred pounds, and that the " Mill, Engine, 
Forge, or Furnace," erected contrary to its directions, 
" shall be deemed a Common Nuisance" and destroyed. 
Naturally, the restrictions placed by Parliament upon 
the commerce of the colonies were frequently violated, 
and smuggling became a common practice. To put a 
stop to such evasions of the law, the House of Lords 
advised the king in 1697 to establish courts of admiralty 
in the plantations, that " the offences against the act of 
navigation might no longer be decided by judges and 
jurors who were themselves often the greatest offenders." 
In the following year the recommendation of the House 
of Lords was carried out, and this gave yet another just 
ground for complaint to the colonists. The functions of 
the admiralty courts in England at this time were to try 
controversies in respect to matters pertaining to com- 
merce on the high seas, and certain crimes 1 there com- 
mitted ; but when these tribunals were established in 
America, the scope of their powers was greatly enlarged, 
and they were given jurisdiction over offenses that had 
hitherto been regarded as triable only before a jury in the 
common law courts ; hence, as the admiralty courts con- 
duct their trials without a jury, the colonists felt that they 
were deprived of a right which dated back to the Magna 



*The criminal jurisdiction of these courts in England was abolished 
in 1833. See discussion on Constitution, Art. III., Sect. 2, Clause 1. 



UNION BETWEEN THE COLONIES. 89 

Charta, the right, when accused of a crime, to have their 
guilt or innocence determined by their fellow-citizens. 

Another means that was finally employed to put an 
end to smuggling and other infractions of the commercial 
restrictions placed upon the colonies, was the so-called 
"Writs of Assistance." These were warrants issued by a 
judge or other magistrate authorizing any revenue officer, 
practically upon mere suspicion, to search any place for 
any goods the importation of which had been forbidden, 
or the duties upon which had not been paid. 

These writs 1 were probably originated by the English 
courts at the dictation of the Crown for the purpose of 
extending the royal prerogative at the expense of the 
liberty of the people. In 1672, an enactment of Parlia- 
ment, whose effect, of course, extended to America, con- 
firmed their validity, and in 1696, another Act expressly 
gave to the revenue officers of the king in America the 
power to make use of them. 

No application was made for these writs until 1753, 
and then Chief Justice Sewall of the Supreme Court of 
Massachusetts, who was asked to issue them, doubting 
their legality, delayed action. Three years later, the 
application being renewed, the court under "the influence 
of Hutchinson, who had succeeded Sewall, declared in 
favor of their validity. 

The nature of the "Writs of Assistance" maybe under- 
stood by the following extract from one granted in 1 765 : 
"Whereby he [the revenue officer] hath power to enter 



J See for a full discussion of this subject Quincy's Mass. Reports, 
1761-1772. See also discussion of the Fourth Amendment to the 
Constitution. 



90 OUR SYSTEM OF GOVERNMENT. 

into any Ship, Bottom, Boat, or other Vessel ; as also into 
any Shop, House, Warehouse, Hostelry, or other place 
whatsoever to make Diligent Search into any Trunk, 
Chest, Pack, Case, Truss or any other Parcel or Package 
whatsoever for any Goods, Wares or Merchandize pro- 
hibited to be Imported or Exported, or whereof the 
Customes or other Duties have not been duly paid." 

The oppressiveness of such writs arose from their gen- 
eral and indefinite nature, which rendered the property 
and home of every citizen subject at any time to be ran- 
sacked by any petty official, who often, perhaps, might 
have no other motive than to cause annoyance and vexa- 
tion. As a committee of a Boston town-meeting held in 
1772 declared with a natural touch of exaggeration as to 
the character of the revenue officers: — "Thus our Houses 
and even our Bed Chambers are exposed to be ransacked, 
our Boxes, Trunks, and Chests broken open, ravaged and 
plundered by Wretches whom no prudent Man would 
venture to employ even as Menial Servants, whenever 
they are pleased to say they suspect there are in the 
House, Wares, &c, for which the duties have not been 
paid." 

In March, 1765, Parliament passed a bill for raising 
revenue in America by requiring stamps purchased from 
royal officers to be affixed to all legal documents, notes, 
written contracts generally, and all papers of a similar 
nature ; and, as if this in itself would not be sufficiently 
exasperating to the colonists, it was further provided that 
offenders against the law should be tried in the admiralty 
courts, thus depriving them of the right of trial by jury. 

While this measure was pending before Parliament, 



UNION BETWEEN THE COLONIES. 9 1 

petitions remonstrating against it were presented from 
several of the colonies, but this body in each case refused 
to receive them on the ground that it was an established 
rule "to receive no petition against a money bill." Con- 
way, a member of the House and a friend of America, 
declared : — " The practice of receiving no petitions against 
money bills is but one of convenience, from which, in 
this instance, if in no other, we ought to vary ; for from 
whom, unless from themselves, are we to learn the cir- 
cumstances of the colonies, and the fatal consequences 
that may follow the imposing of this tax? The question 
regards two millions of people, none of whom are repre- 
sented in Parliament." 

When the news of the passage of the Stamp Act 
reached America the greatest excitement and indignation 
prevailed. The assembly of Virginia passed resolutions 
to the effect that the power to levy taxes on the people 
of that colony could be exercised only by their own 
representatives, elected by themselves ; and Boston, 
assembled in town-meeting, declared to the royal governor 
and the council of Massachusetts : — "The Stamp Act was 
made where we are in no sense represented, therefore is 
no more binding upon us than an Act which should 
oblige us to destroy One Half of Our Species." 

Everywhere throughout the country the obnoxious law 
was denounced and resisted. Many of those who had 
been appointed stamp distributors were compelled to 
promise that they would give up the office, others were 
maltreated, and in Boston the homes of Chief Justice 
Hutchinson and two other leading supporters of the tax 
were sacked by angry mobs. The calmer and wiser con- 



92 OUR SYSTEM OF GOVERNMENT. 

demned everything in the nature of violence, but every 
patriot saw that the time for united resistance had come. 
The oppressions suffered for years by the t colonies in 
common had been constantly bringing them nearer 
together, but now, as never before, they became con- 
scious that in union was to be found the only guaranty of 
liberty. 

On the 6th of June, the Massachusetts House of Repre- 
sentatives under the leadership of James Otis proposed 
by letters to the assemblies of all the other colonies, that 
they should send committees to meet at New York on the 
first Tuesday of the following October for purposes of 
consultation, and to attempt by united action to secure 
relief. To this Congress representatives were sent by all 
the colonies except New Hampshire and Georgia, these 
two, however, promised to adhere to and support the 
decisions that might there be made. 

This body drew up a petition to the king, and addresses 
to the House of Lords and the Commons, but these 
addresses sink into insignificance when compared to the 
great work of the Congress, — the "Declaration of Rights 
and Liberties ;" this declaration contained a succinct state- 
ment of the questions at issue between the mother country 
and the colonies, and plainly foreshadowed the birth of a 
new nation. 

" DECLARATION OF RIGHTS AND LIBERTIES." 

"The members of this Congress esteem it an indispens- 
able duty to make the following declaration of our humble 
opinion respecting the most essential rights and liberties 



UNION BETWEEN THE COLONIES. 93 

of the colonists, and of the grievances under which they 
labor by reason of several late acts of Parliament. 

I. That His Majesty's subjects in these colonies owe 
the same allegiance to the Crown of Great Britain that is 
owing from his subjects born within the realm, and all 
due subordination to that august body, the Parliament of 
Great Britain. 

II. That His Majesty's liege subjects in the colonies 
are entitled to all the inherent rights and liberties of his 
natural born subjects within the kingdom of Great Britain. 

III. That it is inseparably essential to the freedom of 
a people, and the undoubted right of Englishmen, that no 
taxes be imposed on them but with their own consent, 
given personally, or by their representatives. 

IV. That the people of these colonies are not, and, 
from their circumstances, cannot be, represented in the 
House of Commons in Great Britain. 

V. That the only representatives of the people of 
these colonies are persons chosen therein by themselves, 
and that no taxes ever have been or can be constitution- 
ally imposed on them but by their respective Legislatures. 

VI. That all supplies to the Crown being free gifts 
of the people, it is unreasonable, and inconsistent with 
the spirit of the British Constitution, for the people of 
Great Britain to grant to His Majesty the property of the 
colonists. 

VII. That trial by jury is the inherent and invaluable 
right of every British subject in these colonies. 

VIII. That the late act of Parliament entitled ' An act 
for granting and applying certain stamp duties in the 
British colonies and plantations in America,' etc., etc., by 
imposing taxes on the inhabitants of these colonies, and 
the said act, and several other acts, by extending the 
jurisdiction of the Court of Admiralty beyond its ancient 
limits, have a manifest tendency to subvert the rights and 
liberties of the colonists. 



94 OUR SYSTEM OF GOVERNMENT. 

IX. That the duties imposed by the several late acts 
of Parliament, from the peculiar circumstances of these 
colonies, will be extremely burdensome and grievous, and 
the payment of them absolutely impracticable. 

X. That as the profits of the trade of these colonies 
ultimately center in Great Britain, to pay for the manu- 
factures they are obliged to take from thence, they 
essentially contribute very largely to all supplies granted 
there to the Crown. 

XI. That the restrictions imposed by the several late 
acts of Parliament on the trade of these colonies will 
render them unable to purchase the manufactures of 
Great Britain. 

XII. That the increase, prosperity, and happiness of 
these colonies depend on the full and free enjoyment of 
their rights and liberties, and an intercourse with Great 
Britain mutually affectionate and advantageous. 

XIII. That it is the right of British subjects in 
these colonies to petition the king or either House of 
Parliament. 

Lastly : That it is the indispensable duty of these 
colonists to the best of sovereigns, to the mother country, 
and to themselves, to endeavor by a loyal and dutiful 
address to His Majesty, and humble application to both 
Houses of Parliament, to procure the repeal of the act 
for granting and applying certain stamp duties, of all 
clauses of any other acts of Parliament whereby the juris- 
diction of the Admiralty is extended as aforesaid, and 
of any other late acts for the restriction of American 
commerce." 

These declarations produced the greatest excitement 
both in England and America ; Parliament met them with 
the counter declaration that " all His Majesty's colonies 
and plantations have been, are, and of right ought to be, 
subordinate to, and dependent upon the imperial Crown 



UNION BETWEEN THE COLONIES. 95 

of Great Britain, who have full power and authority to 
make laws and statutes of sufficient validity to bind the 
colonies and people of America subjects of the Crown of 
Great Britain, in all cases, whatsoever." 

Shortly after this, the stamp act was repealed, but as 
the repeal was from motives of policy merely, even the 
friends of America in Parliament basing their arguments 
on the shadowy distinction between internal and exter- 
nal taxation, new causes for irritation were constantly 
occurring. 

In 1767, Parliament created a board of revenue com- 
missioners for America to enforce the Navigation Acts 
and other revenue laws, and levied a duty upon tea and 
certain other articles imported into the colonies, for the 
purpose of paying troops and providing fixed salaries for 
the royal governors and judges so that they might be 
independent of the people ; the assembly of New York 
was also declared incapable of further legislation until it 
had complied with an Act passed in 1765 by which the 
colonial legislatures were required to provide for quarter- 
ing upon the people the British troops stationed among 
them. These enactments aroused scarcely less indigna- 
tion than did the Stamp Act itself, and to add fuel to the 
flame, the royal officials seemed to lose no opportunity to 
render themselves personally, as well as the laws, obnox- 
ious as possible to the excited people. 

In the following year, the legislature of Massachusetts 
uttered a public protest against the action of Parliament 
in levying taxes upon the unrepresented colonists and 
urged a united petition to the king for protection, and 



96 OUR SYSTEM OF GOVERNMENT. 

the House of Burgesses in Virginia called for a union in 
defense of American liberties. 

The irritation and excitement still increasing, and the 
tendency to resistance showing itself in petty disturbances 
and occasional opposition to the revenue officers, in 
January, 1769, Parliament to strike with terror those who 
might be inclined to be rebellious, enacted that all cases 
of treason occurring in the colonies or elsewhere should 
be tried in England. This law was a direct violation of 
what had been held for centuries, as a fundamental prin- 
ciple of the English Constitution, the right of a person 
accused of crime to be tried by a jury of his vicinity ; it 
was especially hateful to the Americans, for by it they 
were made liable for defending what they deemed their 
just rights to be transported for thousands of miles from 
their homes to a place where they could have neither the 
assistance nor the advice of friends nor the means of 
proving their innocence, and to be placed on trial before 
a prejudiced and hostile court. 

The excitement in Boston and the generally defiant 
attitude of its people had led in 1768 to the quartering of 
troops in this town. The mutual hatred between the 
soldiers and the citizens finally culminated on the 5 th of 
March, 1770, in a riot, in which a number of the latter 
were killed. As a result of this " massacre," the troops 
were soon removed from the town, leaving the people 
bolder and more outspoken against tyranny than ever 
before. After this, conflicts with the royal officers became 
more frequent throughout the country. 

In May, 1771, a battle in which twenty men were killed 
was fought on the Alamanac river in North Carolina, 



UNION BETWEEN THE COLONIES. 97 

between the forces of the royalist governor and the back- 
woodsmen who were resisting his exactions, and in June 
of the following year, the Gaspee, a revenue vessel that 
was on the outlook for smugglers on the coast of Rhode 
Island, was seized by a body of armed men and destroyed. 
Finally, the destruction of large quantities of tea at Boston 
in December, 1773, to prevent its being landed and put 
on sale, clearly showed to the home government that if 
it proposed to carry out its policy of taxing the colonists, 
vigorous measures were necessary. 

The first blow of Parliament fell upon Boston by an 
Act known as the " Boston Port Bill," which closed the 
port of this town against all commerce until the king 
should be satisfied that its turbulent citizens would respect 
and obey the laws. The port bill was followed by others 
equally obnoxious : The effect of one was the abroga- 
tion, virtually, of the charter of Massachusetts, and the 
placing of the government in the hands of officers 
appointed by the king; another provided that the place 
of trial of any magistrate, revenue officer, or soldier, 
indicted for murder or any other capital offense in Massa- 
chusetts should be transferred to Nova Scotia or to Great 
Britain ; another provided for the quartering of troops 
in the town of Boston ; and another, the Quebec Act, 
made the country north of the Ohio, and east of the 
Mississippi, a part of Canada, coming under the govern- 
ment of the province of Quebec, thus taking away from 
the colonies the control of the territories which they had 
won through the expenditure of so much of their blood 
and treasure, and which they had come to regard as their 

own. 

7 



98 OUR SYSTEM OF GOVERNMENT. 

These grievances and the presence of troops in Bos- 
ton to enforce the acts of Parliament, raised a storm 
of indignation throughout the land, all the colonies realiz- 
ing that Boston was but " the first victim on the altar of 
tyranny." Non-intercourse with the mother country was 
generally declared, and the " Sons of Liberty" in New 
York called for a general congress. Rhode Island was 
the first to elect delegates for this congress ; two days 
later, the 17th of June, 1774, the legislature of Mass- 
achusetts chose delegates for this colony, and in a short 
time similar action was taken in all the others except 
Georgia. Massachusetts proposed Philadelphia as the 
place for the assembly of the convention, as in this city 
there were no troops to interrupt its sessions. 

This convention, commonly known as the " First Con- 
tinental Congress," met at Philadelphia on the fifth day of 
September, 1774. In all their proceedings, the members 
of this body showed a firm but conciliatory spirit, seek- 
ing reconciliation with the mother country in every way 
consistent with the preservation of the rights and liberties 
of the colonies. Against the oppressive measures of 
Parliament they drew up a declaration of rights very 
similar to that promulgated by the congress of 1765. 
They also drew up a petition to the king and addresses 
to the people of England, of British America, and of 
Canada ; but their most important and significant work 
'was the " American Association." By this body of arti- 
cles, a stop was to be put after a certain date, to all trade 
between Great Britain and the colonies unless their 
grievances should in the meantime be redressed. Hav- 
ing voiced the protest of the whole*country, which was 



UNION BETWEEN THE COLONIES. 99 

practically the sole object of its assembling, the congress 
adjourned on October 26, having previously recom- 
mended that another congress should be convened the 
next May. 

The next congress assembled on the 10th of May, 
1775 ; but before this, hostilities had commenced and the 
people were under arms. 

With the Second Continental Congress, as this body is 
known .in history, the political life of the United States as 
a Nation commences. The preceding congresses had 
been but conventions ; neither exercising nor claiming 
the right to exercise sovereign powers, their acts had 
been of a merely advisory nature. The congress of 1775 
saw itself obliged by the exigencies of the times to 
assume a new role, and to become in fact, what by the 
consent and acquiesence of the people it became in right, 
the political head of the united colonies, which at the 
same time became politically one. 

Misgovernment and oppression had finally done their 
great work, and Englishmen in America showed that they 
were of the old Germanic race, were the worthy descend- 
ants of those who had wrested the Great Charter from 
John and of those who had followed Simon de Montfort, 
that in them was the same love of liberty that had for 
centuries resisted and finally crushed in the Revolution of 
1688 the irresponsible power of the Crown. 

The sovereign power hitherto residing in the English 
government was now assumed and exercised by the Con- 
tinental Congress, and the Great REPUBLIC took its 
place among the nations of the earth. 

The Declaration* of Independence of July 4, 1776, 



100 OUR SYSTEM OF GOVERNMENT. 

made "in the Name and by the Authority of the Good 
People of these Colonies," was little more than a formal 
assertion of an already existing condition and of an 
intention to maintain it. 



CHAPTER V. 

THE ARTICLES OF CONFEDERATION AND THE ADOPTION 
OF THE CONSTITUTION. 

The resolutions declaring the independence of the 
colonies were introduced into Congress in the early part 
of June, 1776, and on the eleventh day of the same month 
a committee of one from each colony was appointed to 
draft articles for the confederation of the members of the 
new Union. Unfortunately, this committee took for the 
basis of its work a scheme that Franklin had submitted to 
Congress in July, 1775, before the Americans had become 
conscious that they had indeed founded a nation, and that 
the colonies had ceased to be politically isolated from one 
another. 

On the twelfth day of July, the committee made its 
report. This was discussed from time to time by Con- 
gress until the 15th of November, 1777, when the 
''Articles of Confederation and Perpetual Union" were 
agreed upon and ordered to be submitted to the legisla- 
tures of the several states that they might respectively 
give to their delegates in Congress directions as to ratify- 
ing or rejecting them. The form of the circular letters to 
be sent with the Articles to the different State legislatures 
was agreed upon two days later ; these letters were signed 

by the President of the Congress, and concluded with the 

( 101 ) 



102 OUR SYSTEM OF GOVERNMENT. 

recommendation to each legislature " to invest its dele- 
gates with competent powers, ultimately, and in the name 
and behalf of the State to subscribe articles of confedera- 
tion and perpetual union of the United States, and to 
attend Congress for that purpose on or before the tenth 
day of March next." 

Nearly all the State legislatures without much delay 
authorized their delegates in Congress to ratify the 
Articles of Confederation, the twelfth in order being 
Delaware, whose ratification was made on the 5th of May, 
1779. Maryland, however, refused her assent until the 
States asserting ownership of territory between the Ohio 
and the Mississippi rivers should surrender their claims to 
the Confederation. On March 1, 1781, after these states 
had finally committed themselves to this policy, Maryland 
ratified the Articles, and on the next day Congress 
assembled under the new form of government. 

The framers of the Articles of Confederation were 
naturally led by what had been the controlling political 
idea of the country from the very founding of the colo- 
nies, — the extension of local governmental powers, *and 
suspicion and distrust of all central authority. 

Naturally enough, the great majority of the Americans 
of that day could scarcely conceive that a power to which 
their local governments should in any way be subordi- 
nated, could fail to be other than oppressive and- exact- 
ing; they forgot that all they had suffered from the 
English Crown and from Parliament could come only 
from a government irresponsible to themselves, and that 
the one that was now to be created would be held to as 
strict accountability as their State governments were. 



THE ARTICLES OF CONFEDERATION. 103 

While the war continued, external pressure made up for 
the lack of cohesive power, but when peace came, the 
structureless character of the Confederation showed itself. 
The Articles attempted the impossible feat of creating a 
government that would be efficient and at the same time 
powerless. 1 

The Articles of Confederation in the very source of 
their authority were defective ; they assumed, what never 
had existed in fact, that each State had hitherto been 
independent and sovereign. The Declaration of Inde- 
pendence had been made " in the Name and by the 
Authority of the good People of these Colonies " and it 
refers to them in the opening clause as " one people." 
John Quincy Adams in his " Discourse on the Constitu- 
tion," referring to the second declaration of the Articles 
of Confederation, summarizes the whole matter thus : 
"Where then did each State get the sovereignty, freedom 
and independence which the Articles of Confederation 
declare that it retains? Not from the Declaration of 
Independence, not from the whole people of the Union, 
not from the people of the State itself. It was assumed 
by agreement between the legislatures of the several states 
and their delegates in Congress without authority from or 
consultation with the people at all." 

The so-called government provided by the Articles 
stood as the sole outward representative of sovereignty, 
but it was sovereign only in name, for it was utterly 
incapable of enforcing its treaty obligations or of per- 
forming its duties in behalf of the United States as a 
member of the family of nations. 

^ee Appendix, Articles of Confederation. 



104 OUR SYSTEM OF GOVERNMENT. 

European powers felt that the political union was but a 
shadow, and, so far as the governmental machinery was 
concerned, they were right. The terms of the treaty of 
peace were so frequently violated by the Americans, that 
England held herself justified in not performing her part 
of the contract, and refused for a long time to vacate 
western posts within our recognized limits ; she also pro- 
fessedly based her legislation on the assumption that Con- 
gress had no power to defend the nation or to retaliate. 
Even the self-contained Washington declared in 1787, 
that " to be more exposed in the eyes of the world, and 
more contemptible than we already are is impossible." 

By the Articles of Confederation Congress was to be 
composed of not more than seven nor less than two 
members from each State, but as the different States were 
required to pay their own delegates, it naturally followed 
that the poorer members of the Confederation sent the 
minimum number and frequently were not represented at 
all. The evil results of this condition of affairs were 
greatly intensified by the facts that in the Congress each 
State had but a single vote, and that the assent of nine 
was necessary to pass any measure of importance ; hence, 
it resulted that pressing business often could not be trans- 
acted because a sufficient number of States were not 
represented, and that Congress itself finally lost whatever 
power or respect it had ever enjoyed; " Neglected by its 
own members, insulted and threatened by mutinous 
troops, reviled by the press, and forced to wander from 
city to city in search of an abiding place, its acts pos- 
sessed no national importance whatever." 1 

^cMaster's History of the People of the United States, Vol. I. p. 133. 



THE ARTICLES OF CONFEDERATION. 105 

The only legislative measure of really great importance 
enacted by the Congress of the Confederation was one 
clearly in excess of its authority, not being in any man- 
ner included in " any power, jurisdiction or right . 
expressly delegated " to this body. This measure was an 
ordinance passed in 1787 "for the Government of the 
Territory of the United States North-west of the River 
Ohio," the greater part of this territory having been 
previously ceded to the Confederation by Massachusetts, 
Connecticut and Virginia. 

This ordinance, 1 which deserves the most careful con- 
sideration, was comprehensive and far-reaching in its pro- 
visions, and foreshadows the Constitution that was soon 
to be framed. 

In the Articles there was no provision for a president 
or for any person or body of persons to carry the enact- 
ments of Congress into effect. Article XIII provides that 
"Every State shall abide by the determinations of the 
united states in congress assembled, on all questions 
which by this confederation are submitted to them. And 
the Articles of this Confederation shall be inviolably 
observed by every State." The signers of the instrument 
also declare in the ratifying clause: — "And we do further 
plight and engage the faith of our respective constituents, 
that they shall abide by the determinations of the united 
states in congress assembled, on all questions, which by 
the said confederation are submitted to them." But laws 
and enactments to be effective must have a greater com- 
pelling power than the promises or the good will of those 



J See Appendix, Ordinance of 17S7. 



106 OUR SYSTEM OF GOVERNMENT. 

whom they may affect ; to have force, they must be 
executed by the same government from which they 
emanate ; but for an executive authority, the Articles of 
Confederation made no provision. 

The only approximation towards the establishment of a 
National judiciary was a provision for the creation of a 
special commission as "the last resort on appeal in all 
disputes and differences now subsisting or that hereafter 
may arise between two or more States concerning bound- 
ary, jurisdiction or any other cause whatever." 

The expenses of the Confederation were to be ascer- 
tained by Congress and defrayed out of a common treas- 
ury that was to be supplied by the several States. At 
first, the different legislatures met promptly the levies 
made upon them, but soon, on one pretext or another, 
they began to ignore the demands of Congress. Wash- 
ington but faithfully described the deplorable condition 
when he wrote to Jay, — " Requisitions are little better 
than a by-word throughout the land. If you tell the 
legislatures they have violated the treaty of peace and 
invaded the prerogatives of the confederacy, they will 
laugh in your face;" and Fisher Ames declared that 
"the government of a great nation had barely revenue 
enough to buy stationery for its clerks or to pay the 
salary of its door-keeper." These difficulties, and the 
local jealousies, and the discrimination of the different 
States against the commerce of their neighbors showed 
plainly that a change must soon come. 

Destruction of political life is usually accompanied by 
civil commotion ; America was no exception to this rule, 
and. the Shays rebellion in Massachusetts, whose object 



THE CONSTITUTION. 107 

was to prevent the collection of debts and to break up 
by violence the orderly administration of the law, and 
other disturbances in different parts of the country told 
of approaching political and social disintegration. 

In January, 1786, the legislature of Virginia recom- 
mended the calling of a convention of the different States 
at Annapolis for the purpose of devising a uniform sys- 
tem of commercial regulations and considering the 
question of trade in general. But as only five of the 
States were represented, New York, New Jersey, Pennsyl- 
vania, Delaware and Virginia, the commissioners deeming 
that the exigencies of the time needed more radical 
measures than they were empowered or able to effect, 
drew up a report which was laid before Congress and the 
several State legislatures, recommending the calling of a 
general convention "to meet at Philadelphia on the sec- 
ond day of May next [1787] to take into consideration 
the situation of the United States, and to devise such 
further provisions as shall seem necessary to render the 
constitution of the federal government adequate to the 
exigencies of the Union ; and to report such an act for 
that purpose to the United States in Congress assembled, 
as, when agreed to by them, and afterwards confirmed by 
the legislatures of every State, will effectually provide for 
the same." In February, Congress made the recom- 
mendation advised by the Annapolis convention, and the 
delegates began to meet in Philadelphia on the appointed 
day, but it was the 25th of May before a quorum, a 
representation from a majority of the States was present 
and an organization effected. 

This convention, composed of the ablest men of the 



108 OUR SYSTEM OF GOVERNMENT. 

country, had before it a task that might well have dis- 
mayed the most sanguine. All the old local jealousies 
that had been forgotten in the struggle against the 
common enemy had been revived and strengthened even 
to hostility by the inefficiency of the government of the 
Confederation, and now must be framed a Constitution 
that was to create a new government that was to over- 
come the disintegrating tendencies that had been at work, 
and to finally weld into a definite Union the States that 
had been so rapidly becoming discordant and disunited. 

So great was the distrust with which the people 
regarded the convention, and so diverse were the views 
of its members, that its proceedings were carried on in 
secret, in order that the public might not know of the 
dissensions that were continually appearing, and thus be 
lead to condemn its work before it was completed. 

But nearly all the delegates, influenced by the clear 
good sense and broad patriotism of Washington, who had 
been elected president of the convention, plainly saw that 
they must sink local prejudices and be prepared to make 
concessions, for should the convention adjourn without 
effecting its purpose, disaster and ruin, political and 
social, must follow. The Articles of Confederation had 
completely lost whatever little vitality they had ever 
possessed, and the great majority of the members of the 
convention saw that the only alternative of an effective 
National government was anarchy. 

Mason of Virginia early in the session gave expression 
to this conviction in these words, — " It could not be more 
inconvenient for any gentleman to remain absent from his 
private affairs, but I would bury my bones in this city 



THE CONSTITUTION. IO9 

rather than expQse my country to the consequences of a 
dissolution without anything being done." 

When, after much debate and great differences of 
opinion that had not infrequently culminated in bitterness, 
the great task was finally accomplished, but few recog- 
nized the wisdom and the grandeur of what had been 
accomplished ; several of the most influential delegates 
refused to sign the draft of the proposed frame work of 
government ; even Washington regarded it as imperfect 
and as merely " the best obtainable under the circum- 
stances." 

The Constitution having been completed, on the motion 
of Benjamin Franklin the following form of attestation was 
adopted : — " Done in Convention by the Unanimous Con- 
sent of the States present, the Seventeenth Day of Sep- 
tember in the Year of our Lord, one thousand seven 
hundred and Eighty seven and of the Independence of 
the United States of America the Twelfth. In Witness 
whereof We have hereunto subscribed our Names." l 

The object of thus declaring the proposed Constitution, 
"Done by the Unanimous Consent of the States present," 
was to give an opportunity to those members who 
objected to certain of its details to subscribe their names 
to the instrument, so that it might not go before the 
people bearing the taint of discord. The majority of the 
delegates from each State represented stood ready to 
sign, hence the few dissatisfied ones, might, had they seen 
fit, have consistently subscribed their names as a matter 
of acquiescence. Gerry of Massachusetts, Mason and 



*See Appendix, Constitution of the United States. 



110 OUR SYSTEM OF GOVERNMENT. 

Randolph of Virginia, however, persisted in withholding 
their signatures, though the last named on the solicita- 
tion of Washington supported the Constitution before the 
people. 

Rhode Island did not send delegates to the Convention, 
and two of the three delegates from New York withdrew 
at an early stage of its proceedings so that this State was 
technically not present, although the name of its third 
delegate, Alexander Hamilton, appears as signing in its 
behalf. 

The Constitution having been signed, a copy of it, 
together with the following resolutions and letter from 
Washington was sent to Congress, then in session in 
Philadelphia : 

"In Convention, Monday, September 17th, 1787. 

PRESENT, The States of New Hampshire, Massachusetts, 
Connecticut, Mr. Hamilton from New York, New 
Jersey, Pennsylvania, Delaware, Maryland, North 
Carolina, South Carolina, and Georgia. 

11 Resolved, That the preceding Constitution be laid 
before the United States in Congress assembled, and that 
it is the opinion of this Convention that it should after- 
wards be submitted to a convention of delegates, chosen 
in each State by the people thereof, under the recom- 
mendation of its legislature, for their assent and ratifica- 
tion ; and that each convention, assenting to and ratifying 
the same, should give notice thereof to the United States 
in Congress assembled. 

"Resolved, That it is the opinion of this Convention, 
that as soon as the conventions of nine States shall have 
ratified this Constitution, the United States in Congress 
assembled, should fix a day on which electors should be 



THE CONSTITUTION. I I I 

appointed by the States which shall have ratified the 
same, and a day on which the electors should assemble 
to vote for the President, and the time and place for com- 
mencing proceedings under this Constitution. That after 
such publication the electors should be appointed, and 
the Senators and Representatives elected ; that the elec- 
tors should meet on the day fixed for the election of the 
President, and should transmit their votes, certified, signed, 
sealed, and directed, as the Constitution requires, to the 
Secretary of the United States in Congress assembled ; 
that the Senators and Representatives should convene at 
the time and place assigned ; that the Senators should 
appoint a President of the Senate, for the sole purpose of 
receiving, opening, and counting the votes for President; 
and that, after he shall be chosen, the Congress, together 
with the President, should, without delay, proceed to exe- 
cute this Constitution. 

" By the unanimous order of the Convention. 

" George Washington, President. 

" William Jackson, Secretary!' 

" In Convention, September 17, 1787. 
Sir: — We have now the honor to submit to the con- 
sideration of the United States in Congress assembled, 
that Constitution which has appeared to us the most 
advisable. The friends of our country have long seen 
and desired, that the power of making war, peace and 
treaties, of levying money and regulating commerce, and 
the corresponding executive and judicial authorities, 
should be fully and effectually vested in the general 
government of the Union ; but the impropriety of dele- 
gating such extensive trusts to one body of men is 
evident. Hence results the necessity of a different 
organization. It is obviously impracticable, in the federal 
government of the States, to secure all rights of independ- 
ent sovereignty to each, and yet provide for the interest 



I 1 2 OUR SYSTEM OF GOVERNMENT. 

and safety of all. Individuals entering into society must 
give up a share of liberty to preserve the rest. The 
magnitude of the sacrifice must depend as well on situa- 
tion and circumstances as on the object to be attained. 
It is at all times difficult to draw with precision the line 
between those rights which must be surrendered, and 
those which may be reserved ; and on the present occas- 
ion this difficulty was increased by a difference among the 
several States as to their situation, extent, habits, and 
particular interests. 

In all our deliberations on this subject we kept steadily 
in our view, that which appears to us the greatest interest 
of every true American, the consolidation of our Union, 
in which is involved our prosperity, felicity, safety, per- 
haps our national existence. This important considera- 
tion, seriously and deeply impressed on our minds, led 
each State in the convention to be less rigid on points 
of inferior magnitude than might have been otherwise 
expected ; and thus the Constitution, which we now 
present, is the result of a spirit of amity, and of that 
mutual deference and concession which the peculiarity of 
our political situation rendered indispensable. 

That it will meet the entire approbation of every State 
is not perhaps to be expected ; but each will doubtless 
consider, that had her interest alone been consulted, the 
consequences might have been particularly disagreeable 
or injurious to others ; that it is liable to as few excep- 
tions as could reasonably have been expected, we hope 
and believe ; that it may promote the lasting welfare of 
that country so dear to us all, and secure her freedom and 
happiness, is our most ardent wish. With great respect, 
we have the honor to be, sir, your Excellency's most 
obedient and humble servants : 

By unanimous order of the convention. 

Geo. Washington, President. 

His Excellency the President of Congress." 



THE CONSTITUTION. I I 3 

On the 28th of September, Congress resolved unani- 
mously, eleven States being present, to transmit the 
report of the convention together with the accompanying 
resolutions and letter to the several State legislatures " in 
order to be submitted to a convention of delegates, 
chosen in each State by the people thereof." 

Immediately upon its publication, the proposed Consti- 
tution was assailed in the most bitter and unreasonable 
manner, as threatening by diminishing the power and 
authority of the individual States to bring upon the peo- 
ple even greater oppressions than they had suffered while 
subject to England. Men who had justly ranked as 
statesmen and patriots joined with demagogues in, what 
now seems, the senseless opposition. 

But if the enemies of the Constitution were active, its 
friends were not less so and with Washington at their 
head urged its adoption with unflagging earnestness. 

Among the most notable efforts in behalf of the Con- 
stitution was a series of discussions written by Hamilton, 
Madison and Jay, for the newspapers, while this instrument 
was being considered by the New York convention. 
These papers, collectively termed the Federalist, contain 
a masterly exposition of the general principles of govern- 
ment and of the Constitution in detail ; it is not too much 
to say, that they are unsurpassed if not unequalled in 
point of practical political wisdom ; certainly for the stu- 
dent of our own political institutions they must always 
remain a classic. 

The main factor, however, in effecting the adoption of 
the Constitution was necessity. It was evident to all who 
were not blinded by prejudice that the Articles of Con- 



114 OUR SYSTEM OF GOVERNMENT. 

federation had lost what little efficacy they ever had pos- 
sessed ; and it was equally evident that a new convention 
in the then excited state of the public mind could not 
possibly formulate a plan of government that would be 
generally acceptable. To the more reasonable and mod- 
erate of its opponents the Constitution seemed the less of 
two grievous evils, and on this basis they finally gave it 
their support. Time and again it was rejected in several 
of the State conventions, which, however, did not dare to 
make their rejection decisive by final adjournment, and 
when their ratifications were finally made, it was often by 
small majorities and with recommendations of amend- 
ments. 

The following is the order in which the ratifications 
were made by the conventions of the several States : 

Delaware, December 7, 1787. 
Pennsylvania, December 12, 1787. 
New Jersey, December 18, 1787. 
Georgia, January 2, 1788. 
Connecticut, January 9, 1788. 
Massachusetts, February 6, 1788. 
Maryland, April 28, 1788. 
South Carolina, May 23, 1788. 
New Hampshire, June 21, 1788. 
Virginia, June 26, 1788. 
New York, July 26, 1788. 
North Carolina, November 21, 1789. 
Rhode Island, May 29, 1790. 

The Constitution, Article VII, declares that " The 
Ratifications of nine States, shall be sufficient for the 
Establishment of this Constitution between the States so 
ratifying the same;" accordingly, Congress on receiving 



THE CONSTITUTION. I I 5 

report of the ratification of New Hampshire appointed a 
committee to prepare an act to organize the new Govern- 
ment. On the 13th of September, 1788, Congress passed 
this resolution : 

"Resolved, That the first Wednesday in January next 
be the day for appointing electors in the several States, 
which, before the said day, shall have ratified the said 
Constitution ; that the first Wednesday in February next 
be the day for the electors to assemble in their respective 
States and vote for a President ; and that the first Wednes- 
day in March next be the time, and the present seat 
of Congress (New York) the place, for commencing the 
proceedings under the said Constitution." 

The first Wednesday of March, 1789, happened to be 
the fourth day of the month, and hence, this became 
established as the first day of the presidential term, and of 
the term for which the members of Congress are elected. 

For want of a sufficient number present to constitute a 
quorum, the House of Representatives was not organized 
until the first day of April, and the Senate not until the 
sixth. Washington, who had been unanimously elected 
President, was inaugurated on the thirtieth of the same 
month. 

Thus went into effect amid doubt and misgiving the 
Government of that incomparable Constitution which 
three-quarters of a century later was to be re-affirmed 
and sanctified by all that the love of a great people could 
give, and which to-day embodies the highest ideal of 
government, — individual freedom and development, and 
social and political stability ; which stands as the strongest 
guaranty of the only real liberty, — LIBERTY UNDER THE 
Law. 



CHAPTER VI. 

THE CONSTITUTION OF THE UNITED STATES. 

We, the People of the United States, in Order to 
form a more perfect Union, establish Justice, insure 
domestic Tranquillity , provide for the common Defence, 
promote the general Welfare, and secure the Blessings 
of Liberty to ourselves and our Posterity, do ordain 
and establish this Constitution for the United States of 
America. 

This preamble sets forth the purposes for which the 
Constitution was framed and does not in any way affect 
the scope of National authority as determined by subse- 
quent sections of this instrument. The purposes enumer- 
ated include those for which the State governments also 
exist, and within their respective spheres of action the 
governments of the individual States are as final and as 
independent of National control as the National Govern- 
ment within its sphere of action is independent of State 
control. " The Federal and State governments are, in 
fact, but different agents and trustees of the people, insti- 
tuted with different powers, and designated for different 
purposes." * 

The Constitution in the source of its authority, hence 



: Madison, The Federalist, No. 46. 
(116) 



THE CONSTITUTION. IlJ 

in its very nature, is opposed to the Articles of Confedera- 
tion ; the latter purported to form a confederation between 
thirteen distinct and independent sovereignties ; the for- 
mer is in its origin a framework of government for one 
people. The adoption of the Constitution was a revolu- 
tion as truly as was that effected by the successful issue 
of the war for independence, and by it new and definite 
relations between individuals and between the States were 
created. 

The Constitution as it came from the hands of its 
framers "was a mere proposal, without obligation or pre- 
tension to it. It was reported to the then existing Con- 
gress of the United States with the request that it might 
be submitted to a convention of delegates chosen in each 
State by the people thereof, under the recommendation 
of its legislature, for their assent and ratification. This 
mode of proceeding was adopted ; and by convention, 
by Congress, and by State legislatures, the instrument 
was submitted to the people. They acted upon it in the 
only manner in which they can act safely, effectively, and 
wisely, on such a subject, by assembling in conventions. 
From these conventions the Constitution derives 
its whole authority. The government proceeds directly 
from the people ; is ordained and established in the name 
of the people. . . . The assent of the States in their 
sovereign capacity is implied in calling a convention and 
thus submitting that instrument to the people. But the 
people were at perfect liberty to accept it or reject it, and 
their act was final. It required not the affirmance of, and 
could not be negatived by the State governments. The 
Constitution when thus adopted, was of complete obliga- 



Il8 OUR SYSTEM OF GOVERNMENT. 

tion, and bound the State sovereignties. . . . The 
government of the Union, then, is emphatically and truly 
a government of the people. In form and substance it 
emanated from them. Its powers are granted by them 
and are to be exercised directly on them, and for their 
benefit." 1 

" The Union of the States never was a purely artificial 
and arbitrary relation. It began among the colonies, and 
grew out of common origin, mutual sympathies, kindred 
principles, similar interests, and geographical relations. 
It was confirmed and strengthened by the necessities of 
war, and received definite form and character, and sanc- 
tion from the Articles of Confederation. By these the 
Union was solemnly declared to be perpetual. And 
when these Articles were found to be inadequate to the 
exigencies of the country, the Constitution was ordained 
to form a more perfect Union. It is difficult to convey 
the idea of indissoluble unity more clearly than by these 
words. What can be indissoluble if a perpetual Union 
made more perfect is not? But the perpetuity and indis- 
solubility of the Union by no means implies the loss of 
distinct and individual existence, or the right of self- 
government by the States. . . . Not only can there 
be no loss of separate and independent autonomy to the 
States through their Union under the Constitution, but it 
may not unreasonably be said, that the preservation of 
the States, and the maintenance of their governments, 
are as much within the design and care of the Constitu- 
tion, as the preservation of the Union and the mainten- 



l Ch. J. Marshall, McCulloch vs. Maryland, 4 Wheat., 316. 



THE CONSTITUTION. 119 

ance of the National government. The Constitution in 
all its provisions looks to an indestructible Union com- 
posed of indestructible States." 1 

It is in this division of power that lies the possibility 
of a republic on so magnificent a scale as the United 
States. For our immense territory of which each section 
has its own characteristics, its own peculiar interests, a 
single central government would be entirely inadequate, 
because those who would compose it could not possibly 
comprehend the various and varying local needs so far as 
legislation and governmental administration are con- 
cerned, and even if they could intelligently appreciate 
these needs, from the limitation of time itself, they would 
not be able to meet them. 

In general, to the National Government is committed 
by the Constitution those matters that affect the people 
as a whole, to the States those of interior, or domestic 
regulation. The details of this division of power will be 
discussed throughout this book ; it is sufficient for the 
present to point out that it exists, that we are, in fact, 
subjects of two governments, each so wisely complement- 
ing the other as to secure in the highest degree the 
development and liberty of the individual, and the power 
and dignity of the Nation. 

ARTICLE I. 

SECTION i . All legislative Powers herein granted, shall 
be vested in a Congress of the United States, which shall 
consist of a Senate and a House of Representatives. 



'Texas vs. White, 7 Wall., 700. 



120 OUR SYSTEM OF GOVERNMENT. 

A government to be efficient or to command respect 
must possess power, and power is always liable to abuse. 
The framers of the Articles of Confederation, fearing 
tyranny, so limited the powers of the Congress that alone 
constituted the central government, that it eventually 
became a mere advisory board, " without authority or 
pretence to it." The framers of the Constitution saw 
themselves compelled by the social and political exigen- 
cies of the day to vest in the new National Government 
proposed by them, great and sovereign powers ; but 
recognizing concentration of authority to be the essence 
of despotism, they guarded against possible arbitrary 
action and oppression on the part of those in whose hands 
this power was to be confided by an elaborate system of 
checks and balances, thus following the example of their 
English ancestors, who, from the time when King John 
had cried out in his anger, "They have given me four 
and twenty over-kings," had employed this means to 
secure the liberty of the subject while allowing the gov- 
ernment to exercise the great powers which were nec- 
essary to render it adequate to its responsibilities. 

The first resolution adopted by the convention at 
Philadelphia was the one offered by Mr. Randolph of 
Virginia, "that a national government ought to be estab- 
lished consisting of a supreme legislative, executive and 
judiciary," and Mr. Butler of South Carolina gave expres- 
sion to what had been, and is to-day, the prevailing 
principle in the development of Anglo-Saxon institutions 
when he said, " Heretofore I have opposed the grant of 
new powers to Congress because they would all be vested 
in one body. The distribution of the powers among 



THE CONSTITUTION. 121 

different bodies will induce me to go to great lengths in 
its support." 

John Adams in a letter to a friend enumerated the 
checks and balances in our system as follows : " First, 
the States are balanced against the general government. 
Second, the House of Representatives is balanced against 
the Senate, and the Senate against the House. Third, 
the executive authority is in some degree balanced against 
the legislative. Fourth, the judiciary is balanced against 
the legislative, the executive, and the state governments. 
Fifth, the Senate is balanced against the President in all 
appointments to office, and in all treaties. Sixth, the 
people hold in their own hands the balance against their 
own representatives by periodical elections. Seventh, 
the legislatures of the several States are balanced against 
the Senate by sexennial elections. Eighth, the Electors 
are balanced against the people in the choice of President 
and Vice-President." x The last enumerated check has 
proved illusory in practice, the people, to all intents, 
voting directly for President and Vice-President, and the 
Electors serving merely to register their will. To this 
enumeration we might add, as the most important safe- 
guard of all, the Constitution as the will of the people as 
a political organism is balanced against the government, 
and against the will of majorities which if unrestrained 
could end only in despotism or anarchy. 

At the time of the framing of the Constitution, the 
English parliamentary system of two houses was in vogue 
in all of the States expect Pennsylvania, so that " the 



'Adams' Works, Vol. VI. p. 467. 



122 OUR SYSTEM OF GOVERNMENT. 

proposition that the national legislature shall be composed 
of two branches was acceded to by the Convention with- 
out debate. The decision which was in harmony with the 
undisputed and unchanging conviction of the whole peo- 
ple of the United States, was adopted, partly to check 
haste in legislation by reciprocal watchfulness, and partly 
to prevent the fatal conflict which might one day take 
place between a single legislative body and a single 
executive." : 

" In a republican form of government, the legislative 
authority necessarily predominates." 2 The legislature 
must make laws before the executive can act, or the judi- 
ciary exercise its functions, and from its very nature, its 
members are brought into closer contact with the people 
and have a greater immediate influence over them than 
do the members of the other two departments. "The 
remedy for this inconveniency," i. e., the possibility that 
the law-making body may exercise its vast powers in a 
hasty or tyrannical manner, or in prejudice to the co-ordi- 
nate judicial or executive department, " is to divide the 
legislature into different branches, and to render them by 
different modes of election, and different principles of 
action as little connected with each other as the nature of 
their common functions, and their common dependence 
on society will admit." 3 

Sec. 2. l The House of Representatives shall be com- 
posed of Members chosen every second Year by the People 
of the several States, and the Electors in each State shall 



Bancroft, Vol. VI. p. 216. federalist, No. 51. 



THE CONSTITUTION. I 23 

have the Qualifications requisite for Electors of the most 
numerous Branch of the State Legislature. 

One of the most difficult questions that the Convention 
had to determine was that of representation in Congress. 
The members from the smaller States generally contended 
that each State, as under the Articles of Confederation, 
should be regarded as an individual sovereignty and 
placed upon an equal footing with the others, while those 
from the more populous States urged that each State 
should have an influence in the new government in pro- 
portion to its population. The result was a compromise 
that was in complete accordance with the spirit of the 
Constitution which provides a government acting both 
upon the people as individuals and upon the States as 
political organizations. 

In fixing the time for which the representatives were to 
be elected several considerations presented themselves. 
Primarily, it was necessary that this branch of the National 
legislature directly representing the popular will, should 
be in close touch with the people and always have in 
mind its responsibility to them; on the other hand, it 
was held to be essential that its members should be 
elected for a period sufficiently long that they might 
gain an adequate knowledge of their manifold and 
responsible duties, and also that they might be able to 
resist the passing impulse or passion of the hour, which, 
if yielded to, would often effect disastrous results. The 
term of two years was finally decided upon by the Con- 
vention, and the experience of over a century has demon- 
strated the wisdom of this decision. 



124 OUR SYSTEM OF GOVERNMENT. 

The qualifications of the electors of the representatives 
to Congress are left by the Constitution to be determined 
by the different States, the sole restriction made by the 
Convention being, that "the Electors in each State shall 
have the Qualifications requisite for Electors of the 
most numerous Branch of the State Legislature ; " these 
qualifications, from the nature of the case, are prescribed 
by the constitutions of the different States. 1 

Had the question as to the qualifications of the electors 
of representatives been left to Congress, this body might 
have used the power thus placed in its hands to perpetu- 
ate the control of a certain party, or for other corrupt or 
wrongful purposes ; had it been left wholly to the States, 
the existence of the Union would have been entirely 
dependent on their will, for they through their respective 
constitutions or governments could have destroyed Con- 
gress by fixing absurd or impossible qualifications. The 
single restriction made in the national Constitution meets 
the whole difficulty, for because of it a State cannot 
exercise its power in this respect to the detriment of the 
legislature of r the Nation, without at the same time inflict- 
ing the same harm upon its own. 

With the exception of Wyoming and Utah, the consti- 
tutions of all the States restrict full suffrage to males of 
the age of twenty-one years and upwards. Other than 
this, and the provisions disqualifying criminals and per- 
sons not of sound mind, the qualifications prescribed in 
the different States vary. Fifteen do not require that the 
voter shall be a citizen of the United States, it being suffi- 



] A further qualification is made by Amendment XV. 



THE CONSTITUTION. I 25 

cient if he has, at a certain time prior to the election in 
which he wishes to take part, officially announced his 
intention of becoming naturalized ; some States make the 
payment of taxes due a pre-requisite for voting, and some 
have an educational test. In Wyoming and Utah women 
are given the ballot on equal terms with the men ; in 
Kansas they are permitted to take part in city and school 
elections, and in Minnesota in school elections. 

Abstractly considered, it might seem more fitting that 
the qualifications of those voting for members of the 
National legislature should be the same throughout the 
Nation. The exercise of this important privilege, how- 
ever, is most wisely determined by circumstances and 
conditions, and is not susceptible of definite limitation on 
general grounds. Any proposal to-day to reduce the 
various provisions on this subject in the different State 
constitutions to one general system would undoubtedly 
meet with widespread and intense opposition ; the natural 
attachments that are the outgrowth of long usage and 
habits in regard to the system of suffrage, of which, 
above all other political rights or privileges, the people 
are the most jealous, would enlist all their feelings and 
opinions against any substantial change. 

The jealous conservatism in this regard now existing, 
was at the time of the framing of the Constitution an 
almost morbid passion, and had the Convention proposed 
any uniform National system for determining the qualifi- 
cations of the electors of the representatives, the task of 
persuading the people to accept this instrument would 
have been rendered far more difficult, if not impossible. 



126 OUR SYSTEM OF GOVERNMENT. 

2 No Person shall be a Representative who shall not have 
attained the Age of twenty-five Years, and been seven 
Years a Citizen of the United States, and who shall not, 
when elected, be an Inhabitant of that State in which he 
shall be chosen. 

There must be some qualification as to the age at 
which a person can become a representative, and the 
limitation must, in the nature of the case, be an arbitrary 
one ; generally however, it may be fairly presumed that a 
person not twenty-five years old has not the experience 
or the wide range of observation that one must have to 
adequately discharge the responsibilities devolving upon 
a member of the National legislature. 

The propriety of the second qualification is also obvi- 
ous. In England no one but a native born subject can 
become a member of Parliament; but from the nature of 
our institutions and of our population, such a restriction 
would be impolitic and unjust. Under our present laws, 
the alien is required to be a resident in the United States 
five years before he can become naturalized as a citizen ; 
thus before he is eligible to the House of Representatives, 
he has at least twelve years in which to become familiar 
with our institutions and thoroughly impressed with the 
fact that he is a citizen of this country alone. 

In England and France, the representative may be 
elected from any district whether he resides in it or not. 
In favor of this system it may be said, that it gives a 
greater opportunity of retaining in public life men of 
established ability and integrity, for the fact that their 
political views do not agree with those of the majority 



THE CONSTITUTION. I 27 

party of their own districts does not involve their retire- 
ment. On the other hand, the great territory of the 
United States and the widely diversified conditions of the 
different sections involve the necessity for local representa- 
tion, that does not exist in more compact and homogene- 
ous countries. 

The Constitution provides that the representative must 
be an inhabitant of the State from which he is chosen ; 
usage has'practically established the rule that the candi- 
date must be an inhabitant of the district in which he is 
to be voted for ; this rule, however, has in a few instances 
been disregarded, and representatives have been elected 
from districts in which they did not reside. 

^Representatives and direct Taxes shall be apportioned 
among the several States which may be included within this 
Union, according to their respective Numbers, which shall 
be determined by adding to the whole Number of free Per- 
sons, including those bound to Service for a Term of Years, 
and excludi7ig Indians not taxed, three fifths of all other 
Persons. x ~\ The actual Enumeration shall be made within 
three Years after the first Meeting of the Congress of the 
United States, and within every subsequent Term of ten 
Years, in such Manner as they shall by Law direct. The 
Number of Representatives shall not exceed one for every 
thirty Thousand, but each State shall have at Least one 
Representative; and until such enumeration shall be made, 
the State of New Hampshire shall be entitled to chuse three, 
Massachusetts eight, Rhode Island and Providence Planta- 



1 Amended by the 2d section of Amendment XIV 



128 OUR SYSTEM OF GOVERNMENT. 

tions one, Connecticut five, New York six, New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia 
ten, North Carolina five, South Carolina five, and Georgia 
three. 

The apportionment of representatives among the differ- 
ent States was one of the most difficult questions that the 
Convention had to meet. The slave-holding States con- 
tended that the representation should be in proportion to 
the number of inhabitants in each State, whether they 
were free or slave, the non-slave-holding States insisted 
that it should be determined by the number of free per- 
sons alone ; and thus at the very inception of the Consti- 
tution, we see the beginning of the struggle between the 
free and the slave States for supremacy in the councils of 
the Nation, that was finally to result in the Civil War. 
The delegates from the North urged that as the slaves 
were property, subject to be bought and sold as any other 
chattels, they were no more entitled to representation 
than cattle and horses ; the southern delegates claimed 
that slaves were recognized by all, as men occupying an 
inferior and degraded position, and hence, as social con- 
siderations could not be considered in framing the new 
Constitution, they must be enumerated in determining the 
basis of representation. 

The debates over this question grew so bitter that it 
seemed as if no compromise could be reached. Gouver- 
neur Morris of Pennsylvania sought to "bridge over the 
gulf" that seemed to divide the Convention, by placing 
an additional burden of taxation on the States that should 
prevail in this contest, and proportionately relieving those 



THE CONSTITUTION. I 29 

that should yield. To this end he proposed that taxation 
should be in proportion to representation ; this proposi- 
tion was afterward modified by inserting the word " direct " 
and then accepted by the Convention. 

The final arrangement was suggested by a resolve 
passed in the Congress of the Confederation on the 
1 8th of April, 1783, recommending the States so to 
amend the Articles of Confederation that the expenses of 
the central government might be defrayed out of a com- 
mon treasury "which shall be supplied by the several 
States in proportion to the whole number of white, or 
other free inhabitants, of every age, sex, and condition, 
including those bound to service for a term of years, and 
three fifths of all other persons not comprehended in the 
foregoing description, except Indians not paying taxes, in 
each State." 

In ordinary discussion, "direct taxes" denotes poll, or 
capitation taxes, and the taxes directly paid by the owner 
of the property or the recipient of the income upon 
which they are levied, but until recently the meaning of 
the term as it is used in the clause under consideration 
has been restricted within much narrower limits. 

In 1796, the Supreme Court of the United States 
declared: — "The Constitution evidently contemplated no 
taxes as direct taxes, but only such as Congress could lay 
in proportion to the census. The rule, of apportionment 
is only to be adopted in such cases where it can reason- 
ably apply ; and the subject taxed must ever determine 
the application of the rule. If it is proposed to tax any 
specific article by the rule of apportionment, and it 

evidently would create great inequality and injustice, it is 
9 



130 OUR SYSTEM OF GOVERNMENT. 

unreasonable to say that the Constitution intended such a 
tax should be laid by that rule. . . . For example ; 
suppose two States, equal in census, to pay eighty thous- 
and dollars each, by a tax on carriages ; and in the one 
State there are one hundred carriages, and in the other 
one thousand. The owners of carriages in one State 
would pay ten times the tax of the owners in the other ; 
A, in one State would pay for his carriage eight dollars ; 
but B, in the other State would pay for his carriage 
eighty dollars." 1 The doctrine laid down in this case was 
reaffirmed in others in one of which the Court said : — 
" It may be rightfully affirmed that in the practical con- 
struction of the Constitution by Congress, direct taxes 
have been limited to land and appurtenances, and taxes 
on polls, or capitation taxes." 2 

In 1894, however, when an income tax law that had 
been passed by Congress was attacked before the 
Supreme Court as unconstitutional on the ground that it 
was a direct tax and not " apportioned among the several 
States . . . according to their respective Numbers," 
a majority of the Justices sustained this position, declar- 
ing as the opinion of the Court that "taxes on real estate 
being indisputably direct taxes, taxes on the rents or 
income of real estate are equally direct taxes;" and that 
"taxes on personal property, or the income of personal 
property, are like,wise direct taxes." 3 

It was provided in the Constitution that the House of 
Representatives should consist of sixty-five members until 



^ylton vs. U. S. 3 Dall., 171. 

2 Veazie Bank vs. Fenno, 8 Wall., 583. 

3 Pollock vs. Farmer's Loan & Trust Co. 158, U. S., 637. 



THE CONSTITUTION. 131 

the first census; this was made in 1790, when the popula- 
tion of the United States including that of the Territories 
was ascertained to be 3,929,214. 

In 1792, Congress enacted that there should be one 
representative for every 33,000 people for the decade 
from 1793 to 1803. The number of the population of 
each State, as ascertained by the method provided in the 
Constitution, was then divided by the representative ratio, 
and the quotient was the number of representatives to 
which it was entitled. 

• From 1803 to 1813, the same ratio of representation 
was maintained, the number of representatives being 
increased to 141. At every decennial apportionment 
since, the ratio has been increased ; the last, for the 
decade from 1893 to 1903 being one member of the 
House of Representatives for every 173,301 of the 
population. 

In 1842, the original method of apportionment was 
modified by allowing an additional representative for a 
number greater than half the representative ratio. In 
1850, the present system was adopted; under it, Con- 
gress first determines the number of representatives ; the 
population of the whole country is divided by this, and 
the quotient is the ratio of representation ; as before, 
the population of each State is divided by the ratio to 
determine the number of representatives to which it is 
entitled. 

The re-apportionment act of 1891 fixed the number of 
representatives at 356, and, as had been the case in the 
preceding acts of a similar nature, it provided that, 
" Whenever a new State is admitted into the Union, the 



132 OUR SYSTEM OF GOVERNMENT. 

representative, or representatives assigned to it shall be 
in addition to the number three hundred and fifty-six." 

Under an act of Congress, each organized Territory is 
allowed to send one delegate to the House of Representa- 
tives. This delegate is elected in the same manner as the 
representative, has the right to participate in the debates, 
is placed on the committees, but has no right to vote on 
any measure. 

The enumeration directed to be taken every ten years, 
primarily for the numbering of the people for purposes 
of representative apportionment, has become, so to 
speak, a great decennial inventory in which the economic 
and social facts of our National life and progress are 
ascertained and set forth. 

*When vacancies happen in the Representation from any 
State, the Executive Authority thereof shall issue Writs of 
Election to fill such Vacancies. 

This clause requires but slight comment. If the power 
to order elections to fill vacancies were left to the House 
of Representatives, conditions might often exist that 
would lead the majority of this body to de'fer action for 
an unreasonable length of time. The State, however, is 
naturally interested in maintaining its influence in Con- 
gress and will naturally provide by suitable legislation to 
make this clause effective as soon as may be after a 
vacancy has occurred in its delegation, while the direct 
responsibility of the executive of the State to the people, 
who will be deprived of representation in Congress by any 
delay, will ordinarily be a sufficient guaranty of prompt 
compliance on his part with this legislation. 



THE CONSTITUTION. 133 

5 The House of Representatives shall chuse their Speaker 

and other Officers; and shall have the sole Power of 

Impeachment. 

i 

The presiding officer of the English House of Commons 
was originally its mouth-piece in presenting its addresses 
and petitions to the king, and so became its " Speaker." 
The sovereign would naturally refuse to listen to one who 
was personally or for any reason offensive to himself, 
hence his approbation became necessary in the selection 
of this important officer. As the " speaking" duties of 
the presiding officer of the House of Commons dis- 
appeared, the royal approbation became a matter of 
form, but yet so long as the Crown possessed any power 
independent of the ministry, the possibility of interference 
existed. To guard against a similar possibility in this 
country by the executive branch of the government acting 
along the line of English precedent, the power of choos- 
ing its own Speaker was expressly given to the House of 
Representatives in the Constitution. 

Under the methods of legislation that have grown up 
in the House, the position of Speaker has become one of 
great importance. The subjects with which the House 
of Representatives has to deal have become so many and 
so complex, and its membership has become so large, 
that anything like a full and competent consideration or 
investigation by the whole legislative body of the meas- 
ures upon which it is called to pass judgment has become 
impossible. This work is mainly done by committees 
that are appointed, under the rules of the House, by the 
Speaker. 



134 ' OUR SYSTEM OF GOVERNMENT. 

Every bill or resolution introduced into the House, as 
well as every measure that has passed the Senate and 
been brought to this branch for its sanction, is here first 
read simply by its title and referred to its appropriate 
committee. In the committee-room the real work of 
deliberation is carried on. Each committee makes an 
especial study and investigation of the matters especially 
assigned to it, and its members pay comparatively little 
attention to other matters of legislation except those that 
are of great public or party interest, or those in which 
they would naturally be interested from local considera- 
tions. Of the bills introduced into the House and 
referred, some of them are reported by the committees to 
the House for action in their original form, others appear 
in a more or less modified condition, but the great 
majority of them are quietly laid aside. 

From the fact that these committees practically deter- 
mine what measures shall be presented for consideration, 
and the necessary limitation of debate in the House, 
the influence of the Speaker in shaping legislation has 
become very great, the responsibility of his office being 
scarcely less than that of the Presidency itself. 

The Speaker, whose duties are legislative, is a member 
of the House, the other officers of this body are 
employes. Besides the duties naturally devolving upon 
the Clerk of the House, such as the preparation under 
the control of the Speaker of the journal of the daily 
proceedings, the reading of all messages, bills, and such 
other papers as may be required, the distributing of 
documents to the members, the attesting of bills, writs, 
etc., the keeping account of the incidental expenditures 



THE CONSTITUTION. 135 

of the House, and the supervising of all its clerical work, 
it is required by law that " Before the first meeting of 
each Congress the Clerk of the next preceding House of 
Representatives shall make a roll of the Representatives- 
elect, and place thereon the names of those persons, and 
of such persons only, whose credentials show that they 
were regularly elected in accordance with the laws of 
their States respectively, or the laws of the United 
States." l 

Upon the Clerk of the next preceding House also 
devolves the duty of presiding over the organization of 
the new House until the Speaker is elected. 

The duties of the Sergeant-at-Arms are to maintain, 
under the direction of the Speaker, order and decorum 
during the sittings of the House, to execute all processes 
issued by its authority, and to give effect to its commands 
generally. It is also his duty to keep the pay and 
mileage accounts of the members and to pay them as 
provided by law. In case of a vacancy in the office of 
Clerk or of his inability to execute the duties of his office, 
it devolves upon the Sergeant-at-Arms to prepare the 
roll of the members-elect of the next succeeding House 
and to preside over its organization. 

The vesting of the power of impeachment in the more 
popular branch of the legislative body is copied from the 
English Constitution, the House of Commons having 
exercised this power as early as 1376. 

The nature of an impeachment is that of an inquiry by 
the people through their direct representatives into the 



l Rev. Stat. U. S. Sec 



136 OUR SYSTEM OF GOVERNMENT. 

conduct of a public officer, and a formal complaint against 
him of neglecting or abusing his official position or of so 
conducting himself as in any way to degrade it or bring 
it into contempt. This proceeding may also be used 
when other means fail of removing public officers who are 
unfit or who have become in any way incapacitated for 
the proper performance of their duties. Its great utility, 
however, is as an effective and salutary means of holding 
to a strict sense of accountability those to whom are 
entrusted great public responsibilities. "An admirable 
expedient which, by removing and punishing corrupt 
ministers, affords an immediate remedy for the evils of 
state, and strongly marks out the bounds within which 
power ought to be confined : which takes away the 
scandal of guilt and authority united, and calms the 
people by a great and awful act of justice." x 

The Constitution gives to the Senate " the sole power 
to try all Impeachments;" the functions of the House are 
the presenting of the articles of impeachment, i. e., the 
formal complaint, and the prosecution of the offender 
before that body. 

The proceedings of the House are essentially as follows : 
The charges made are referred to a special committee for 
investigation ; if, after the report of this committee, the 
House resolves that the accused be impeached, a com- 
mittee is appointed to impeach him before the Senate 
" in the name of the House of Representatives and of all 
the people of the United States," and to make known that 
articles of impeachment will, in due time, be brought 



l De Lolme Const, of England, Ch. VI. 



THE CONSTITUTION. 1 37 

against him. Another committee is at the same time 
appointed to draw up the articles of impeachment, and 
five managers are elected by ballot to conduct the case 
before the Senate when this body shall notify the House 
of its readiness to proceed to trial. 

The mode of trial, the question as to who may be 
impeached, and the impeachment trials of National 
officers that have taken place will be discussed elsewhere 
in this book. 

Sec. 3. l The Senate of the United States shall be com- 
posed of two Senators from each State, chosen by the Legis- 
lature thereof, for six Years; and each Senator shall have 
one Vote. 

In a consolidated or homogeneous republic, the various 
districts should be represented in the legislative body 
according to their respective populations ; in a league 
of sovereign States, since the smallest has at stake as 
much as the largest, equality of suffrage must prevail in 
the common council. Hence, in a federal republic, as 
our own, the organization of the government should 
reflect both these characteristics. 

The election of the senators by the State legislatures 
" is recommended by the double advantage of favoring a 
select appointment, and giving to the State governments 
such an agency in the formation of the federal govern- 
ment, as must secure the authority of the former, and 
may form a convenient link between the two systems." 

The equality of the States in the Senate does not, 
however, make this body simply " a grand council of the 



138 OUR SYSTEM OF GOVERNMENT. 

States," as it has sometimes been termed, for if such were 
its nature, its powers could only extend to those matters 
that affect the States as such, the making of laws affect- 
ing individuals would not lie within its province. The 
law-making power of the Senate is, however, as complete, 
with a single unimportant exception, 1 as is that of the 
House of Representatives. The method of voting in the 
Senate still further negatives this idea, for instead of each 
State casting a single vote determined by the majority of 
its delegation, as in the Congress of the Confederation, 
and as would be the case if the States as such were repre- 
sented, each senator votes individually, irrespective of 
what his colleague may see fit to do. The Senate is, 
then, as much a legislative branch of the Nation, of the 
people, as is the House. The equal vote of each State 
is simply " a constitutional recognition of the portion of 
individual sovereignty remaining in each State, and an 
instrument for preserving that sovereignty," 2 nothing 
more. 

When the proposition that the members of the Senate 
should be chosen by the State legislatures was first con- 
sidered by the Convention, it was opposed by the dele- 
gates of Pennsylvania and Virginia as being a step 
towards the equality of the different States in this branch, 
which, in fact, it proved to be. The term for which the 
senators were to be elected was also a matter of much 
difference of opinion, some delegates urging four years, 
others six, others nine, while Read of Pennsylvania advo- 
cated a life tenure. The result was again a compromise 



Federalist, No. 62. 2 Sect. 7, clause 1, of this Article. 



THE CONSTITUTION. I 39 

of which time has proved the wisdom, a term of six 
years, with a biennial renewal of one-third of the mem- 
bers as provided in the following clause : 

2 •Immediately after they shall be assembled in Consequence 
of the first Election, they shall be divided as equally as 
may be into three Classes. The Seats of the Senators of the 
first Class shall be vacated at the Expiration of the second 
Year, of the second Class at the Expiration of the fourth 
Year, and of the third Class at the Expiration of the sixth 
Year, so that one-third may be chosen every second Year; 
and if Vacancies happen by Resignation, or otherwise, 
during the Recess of the Legislature of any State, the 
Executive thereof may make temporary Appointments until 
the next Meeting of the Legislature, which shall then fill 
such Vacancies. 

Through the fact that at every biennial renewal of the 
Senate two-thirds of this body remain to impress its 
usages and customs upon the new members, a feeling of 
continuity is engendered and there is promoted that spirit 
of conservatism which is the great guarantee of the per- 
manence of popular institutions. This provision supplies 
also another safeguard against the influence of popular 
passion or prejudice upon the Senate, for, however high 
the general feeling may run, at no time can more than 
one-third of its members be replaced ; four years, at least, 
are required for a majority of new members to be elected. 
Hence, this body, as a whole, will naturally seek for 
approval in the sober second thought of the people, 
rather than look for approbation by conforming its action 
to the passing impulse of the day. 



140 OUR SYSTEM OF GOVERNMENT. 

At the opening of the first session of Congress in 
1789, the assignment of the senators present was made 
by lot, those from the same State, however, being placed 
so that their respective terms would not expire at the 
same time. The arrangement once established, the sena- 
tors thereafter, except from new States, were elected for 
the full term of six years. On the admission of a new 
State to the Union, two senators are elected in the usual 
manner by its legislature, and so assigned by lot by the 
Senate as to keep the three classes as numerically equal 
as possible ; hence, the terms of the senators from a new 
State, may be two, four, or six years. 

3 No Person shall be a Senator who shall not have 
attained to the Age of thirty Years, and been nine Years a 
Citizen of the United States, and who shall not, when 
elected, be an Inhabitant of that State for which he shall 
be chosen. 

"The qualifications proposed for senators, as distin- 
guished from those of representatives, consist in a more 
advanced age, and a longer period of citizenship. A 
senator must be thirty years of age at least ; as a repre- 
sentative must be twenty-five. And the former must 
have been a citizen nine years ; as seven years are 
required for the latter. The propriety of these dis- 
tinctions is explained by the nature of the senatorial 
trust; which, requiring a greater extent of information 
and stability of character, requires, at the same time, that 
the senator should have reached a period of life most 
likely to supply these advantages ; and which, participat- 



THE CONSTITUTION. 141 

ing immediately in transactions with foreign nations, 
ought to be exercised by none who are not thoroughly 
weaned from the prepossessions and habits incident to 
foreign birth and education. The term of nine years 
appears to be a prudent mediocrity between a total 
exclusion of adopted citizens, whose merit and talents 
may claim a share in the public confidence, and an indis- 
criminate and hasty admission of them, which might 
create a channel for foreign influence on the national 
councils." l 

*The Vice President of the United States shall be Presi- 
dent of the Senate, but shall have no Vote unless they be 
equally divided. 

The original report to the Convention by the committee 
of detail gave to the Senate the power of choosing its own 
presiding officer, upon whom was to devolve the powers 
and duties of the Presidency of the United States in case 
of the death, resignation, or disability of the President. 

In the closing days of the Convention, when the exist- 
ence of such an officer as the Vice President had been 
decided upon, it was provided that he should preside over 
the Senate, practically, for the purpose of giving him 
something to do and of so keeping him in the current of 
political events, that if called upon to act as chief execu- 
tive he would be thoroughly conversant with the adminis- 
trative questions of the day. But though his constitu- 
tional duties are limited and comparatively unimportant, 



'Federalist, No. 62. 



142 OUR SYSTEM OF GOVERNMENT. 

the personal influence of the Vice President in shaping 
public policy is very great, for the fact that the people of 
the whole country have selected him as one worthy to 
occupy the presidential chair, and, in fact, as a possible 
President, gives to his position a dignity that does not 
attach to an appointive office or to one filled by a single 
State or its people. 

The casting vote of the Vice President is of efficacy 
only when given in the affirmative, for the assent of a 
majority being required to pass a measure, it is, of course, 
lost when the Senate is equally divided. 

Owing to the fact that the Senate elects the members 
of its different committees, the Vice President has little or 
no direct influence in shaping its policy in legislative 
matters. From the relatively small membership of the 
Senate, its rules are much simpler, and in its debates and 
in the general transaction of its business a much greater 
freedom is allowed than in the other branch of Congress ; 
hence, in this respect also, the responsibility resting on its 
presiding officer is correspondingly less than that of the 
Speaker of the House. Like the Speaker, the President 
of the Senate is completely subject to the system of 
parliamentary rules adopted by the body over which he 
presides. 

$The Senate shall chuse their other Officers, and also a 
President pro tempore, in the Absence of the Vice Presi- 
dent, or when lie shall exercise the Office of President of 
the United States. 

The " other officers " of the Senate correspond in char- 



THE CONSTITUTION. 1 43 

acter and in duties to the different subordinate officers of 
the House of Representatives. Unlike the Clerk of the 
House, the Secretary of the Senate has no official 
authority to make up the roll of the members-elect of 
this branch, nor does he preside over it on the opening 
of the first session of Congress, for the organization of 
the Senate is permanent, and the Vice President on tak- 
ing the oath of office becomes at once by the Constitu- 
tion its presiding officer. In the absence of the Vice 
President, however, the rules of the Senate provide that 
its Secretary shall perform the duties of the Chair until a 
president pro tern, is chosen. The established practice is 
for the Vice President to vacate the Chair soon after the 
opening of the first session of a Congress and for a presi- 
dent pro tern, then to be chosen who serves as such until 
the assembling of the succeeding Congress, the Senate 
having always the right to make a change at its pleasure. 

6 The Senate shall have the sole Power to try all 
Impeachments. When sitting for that Pitrpose, tliey shall 
be on Oath or Affirmation. When the President of the 
United States is tried, the Chief Justice shall preside: 
And no person shall be convicted without the Concurrence 
of two-thirds of the Members present. 

As to the House of Representatives is given " the sole 
power of impeachment," so in the Senate is vested "the 
sole power to try all impeachments." The Senate cannot 
initiate proceedings of this nature, for the formal accusa- 
tion of the offender must be made by the House before 
this branch of Congress can act. 



144 0UR SYSTEM OF GOVERNMENT. 

The process of impeachment under the provisions of 
the Constitution does not extend to private individuals ; 
it reaches only the public officers of the United States. 
In each State, however, a similar method is provided for 
punishing State officials who have abused their power, or 
neglected or betrayed their trust. 

The offenses designed to be punished by impeachment 
are those of a political nature, — crimes against the gov- 
ernment, rather than crimes against society. Even in the 
cases of impeachment " for treason, bribery, or other 
high crimes and misdemeanors," as set forth in Article 
II. Section 4, it is the offense against the government as 
such, rather than against the people, that the Constitution 
has in view, and in the clause following the one under 
consideration, we see that the punishment resulting from 
the conviction of the person impeached is a purely politi- 
cal one, while to the courts of law is left the question of 
the crime against society and its fitting punishment. 

From the very nature of an impeachment trial, the 
scope of inquiry must be broader and the methods of 
investigation more free than in the trial of a person 
accused of crime in an ordinary court of justice. In the 
latter case it is a question of the commission of a certain 
act or of certain acts which have already been declared 
criminal by positive law. In the former, it is essen- 
tially a question as to whether certain acts or a certain 
course of conduct of which the public officer stands 
impeached, is detrimental or derogatory to good govern- 
ment. These acts or this course of conduct it may, 
of course, be necessary to prove in a manner more or less 
in accordance with the rules of evidence established by 



THE CONSTITUTION. 1 45 

the courts of law ; but, in its main features, the impeach- 
ment process is a device, not to punish for the commission 
of acts recognized and established by positive law to be 
crimes, but to enable Congress to see to it " lest the 
Republic should suffer harm " from those into whose 
hands the safety and well-being of its government has 
been entrusted. 

The constitution of the Senate renders this body an 
excellent court for the trial of political offenses ; far 
enough from the people to be comparatively uninfluenced 
by the passions and impulses of the day, it is yet near 
enough to them to be held to a sense of responsibility in 
passing judgment upon the person impeached ; while 
from its very nature and its ordinary functions it is better 
fitted to judge of the nature and results of the acts and 
conduct of public officers in the discharge or in the 
neglect of their duties than a court of law would be. 

The object of that part of the clause providing that 
"When the President of the United States is tried, the 
Chief Justice shall preside," is to exclude from the Chair 
the Vice President and the president /r# tern., who would 
both be interested in the result ; for if the President 
should be removed from office, the Vice President would 
occupy his place, and the president pro tern, would 
become the permanent presiding officer of the Senate. 
The selection of the Chief Justice to preside on this 
occasion is also a recognition of its extreme gravity, and 
a further safeguard against hasty and inconsiderate action 
in so momentous a matter. 

The provision that " no person shall be convicted 

without the concurrence of two-thirds of the members 
10 



I46 OUR SYSTEM OF GOVERNMENT. 

present" is another safeguard against the effect of party 
passion and a happy means between conviction by a 
simple majority, as in the House of Lords in England, 
and the requirement of an unanimous vote to convict, 
which would practically constitute a perfect protection to 
the accused. 

On the day following that on which articles of im- 
peachment against any officer have been duly laid before 
the Senate, the members of this body proceed to con- 
sider them, first taking oath or making affirmation " in all 
things appertaining to the trial . . . to do impartial 
justice according to the Constitution and laws." 1 A sum- 
mons is then issued to the accused, notifying him to 
appear on a certain day and answer to the articles of 
impeachment which are recited in the writ. When this 
day has arrived, the Senate resolves itself into a court of 
impeachment. If the accused does not appear, the trial 
may proceed in his absence ; if he appears either in per- 
son or by counsel, he is entitled to a copy of the articles 
of impeachment and a suitable time in which to prepare 
an answer. This answer having been filed, and a replica- 
tion, or reply, made to it on behalf of the House, re- 
affirming the truth and sufficiency of the articles pre- 
sented, a day is set for the trial to open. From this time 
on, the process is, in general, similar to the trial of a per- 
son indicted for a crime in an ordinary court, without, 
however, the strict observance of forms and technical 
rules required in a judicial tribunal : There are opening 
arguments and statements by both parties, the managers 



Rules of the Senate. 



THE CONSTITUTION. 1 47 

for the House or their counsel on the one side, the 
impeached or his counsel on the other; the examination 
and cross-examination of witnesses ; evidence in con- 
firmation and evidence in rebuttal, and the closing argu- 
ments. When all this has been completed, the Senate 
deliberates upon the matter and makes its final decision. 
Ordinarily, while the trial is going on the public is 
admitted to the Senate chamber, but all the discussions 
and deliberations of the Senate itself take place behind 
closed doors. On the final question, whether the im- 
peachment is sustained, the yeas and nays are taken on 
each article of the impeachment separately, and if two- 
thirds of the members sustain any of them, the Senate 
proceeds to pronounce judgment. 

7 Judgment in Cases of Impeachment shall not extend 
further than to removal from Office, and disqualification to 
hold and enjoy any Office of honor, Trust or Profit tinder 
the United States: but the Party convicted shall nevertheless 
be liable and subject to Indictment, Trial, Judgment and 
Punishment, according to law. 

In England, the person convicted under an impeach- 
ment process may be punished as the House of Lords 
sees fit to direct; but in this country, the punishment is 
made by the Constitution political in its nature, and thus 
corresponds to the offense. 

This provision also secures to persons accused of politi- 
cal offenses the protection which formed an essential 
part of the Magna Charta ; i. e. } that no person shall suffer 
in life, liberty, or property, unless by " the judgment of 



148 OUR SYSTEM OF GOVERNMENT. 

his peers or the law of the land;" i. e., by a verdict of a 
jury and by positive law. 

In order that the political punishment which the 
offender receives may not serve as a shield against the 
punishment befitting his wrongful acts so far as they are 
of the nature of crimes, the latter part of the clause under 
consideration makes him subject for them to " indictment, 
trial, judgment, and punishment according to law" in 
the ordinary criminal courts of the country. 

SEC. 4. l The Times, Places and Manner of holding 
Elections for Senators and Representatives, shall be pre- 
scribed in each State by the Legislature thereof; but the 
Congress may at any time by Law make or alter such 
Regulations, except as to the Places of chusing Senators. 

As we have seen, the determining of the qualifications 
of the electors of the representatives is left, under cer- 
tain restrictions, to the different States, and the choosing 
of the senators is made the duty of their respective 
legislatures. The power to regulate these elections, how- 
ever, is made by the Constitution a concurrent one ; that 
is, it may be exercised either by State or by National 
authority. 

The phraseology of the clause under consideration 
implies that unless there be some especial reason for 
National regulation or oversight, the general control of 
the election of the members of the National legislature is 
to be left in the hands of the individual States. 

This provision was the object of the most violent 
attacks when the Constitution came before the people for 



THE CONSTITUTION. 1 49 

their consideration, it being asserted that the vesting in 
Congress of this final power over " the Times, Places and 
Manner of holding Elections for Senators and Represen- 
tatives" would surely result in the electoral privilege 
being indirectly placed in the hands of a favored few, and 
that thus popular suffrage itself would be destroyed. But 
Hamilton well met this and similar objections by urging 
that the propriety of giving to Congress this ultimate 
control over the election of its own members " rests upon 
the evidence of this plain proposition, that every govern- 
ment ouglit to contain in, itself the means of its own pre- 
servation. . . . Nothing can be more evident, than 
that an exclusive power of regulating elections for the 
National government, in the hands of the State legisla- 
tures, would leave the existence of the Union entirely at 
their mercy. They could at any moment annihilate it, 
by neglecting to provide for the choice of persons to 
administer its affairs. It is to little purpose to say, that a 
neglect or omission of the kind would not be likely to 
take place. The constitutional possibility of the thing, 
without an equivalent for the risk, is an unanswerable 
objection." x 

"There is no declaration that the regulations shall be 
made either wholly by the State legislatures or wholly by 
Congress. If Congress does not interfere, of course they 
may be made wholly by the States ; but if it chooses to 
interfere there is nothing to prevent its doing so, either 
wholly or partially. It may either make the regulations 
or.it may alter them. If it only alters, leaving, as mani- 



^ederalist, No. 69. 



ISO OUR SYSTEM OF GOVERNMENT. 

fest equity requires, the general organization of the polls 
to the State, there results a necessary co-operation of the 
two governments in regulating the subject. But no 
repugnance in the system of regulations can arise 
thence ; for the power of Congress over the subject is 
paramount." x 

As there can be no repugnance between the National 
and State laws for regulating elections, so there can be 
no conflict between the officers of the Nation and of the 
State in the execution of them ; for, as in such cases, the 
National laws are paramount, so also, must be the au- 
thority of those who execute them, and it is " an incon- 
trovertible principle that the government of the United 
States may by means of physical force, exercised by its 
official agents, execute on every foot of American soil 
the powers and functions that belong to it." ' 

As perhaps no other part of the Constitution was made 
the subject of more discussions while that instrument was 
before the people pending its adoption, or has since then 
been made the object of more acrimonious attacks, 
it may not be amiss to quote further the words of the 
Supreme Court of the United States in the case already 
cited : — " It seems to be often overlooked that a National 
Constitution has been adopted in this country, establish- 
ing a real government therein, operating upon persons 
and territory and things ; and which, moreover, is, or 
should be, as dear to every American citizen as his State 
government is. Whenever the true conception of the 
nature of this government is once conceded, no real diffi- 



J Ex parte Siebold, 100 U. S., 371. 



THE CONSTITUTION. I 5 I 

culty will arise in the just interpretation of its power. 
But if we allow ourselves to regard it as a hostile organi- 
zation, opposed to the proper sovereignty and dignity of 
the State governments, we shall continue to be vexed 
with difficulties as to its jurisdiction and authority. 

No greater jealousy is required to be exercised towards 
this government in reference to the preservation of our 
liberties, than is proper to be exercised towards the State 
governments. The true interests of the people of this 
country require that both the national and the State 
governments should be allowed without jealous interfer- 
ence on either side, to exercise all the powers which 
respectively belong to them according to a fair and 
practical construction of the Constitution. State rights, 
and the rights of the United States should be equally 
respected. Both are essential to the preservation of our 
liberties and the protection of our institutions. But in 
endeavoring to vindicate the one, we should not allow our 
zeal to nullify or impair the other." 

Up to 1842, the power vested in Congress by this 
clause was not exercised, but in that year an act was 
passed providing that the representatives should be 
elected by districts of contiguous territory containing as 
nearly as practicable an equal number of inhabitants. 
The determining of this territory, in other words, of the 
limits of the congressional districts is left to the respective 
States. Frequently, however, the majority party in the 
State legislature, led more by considerations of partisan 
advantage than by their sense of justice and equity 
towards the minority, so construct, " gerrymander," the 
districts as to secure the election of the greatest possible 



152 OUR SYSTEM OF GOVERNMENT. 

number of representatives affiliating with themselves 
politically. 

As a consequence of the socially and politically chaotic 
condition of the southern States in the years following the 
close of the Civil War, Congress provided a quite com- 
plete system of National regulation and control for the 
election of the representatives. The object of these 
enactments was to secure freedom of suffrage to the 
negroes in the South, although they were applicable to 
similar elections and to all citizens in every section. 

In 1870, penalties were denounced against State regis- 
tration and election officers who should fraudulently 
hinder, or interfere with, or in any way attempt to defeat 
the free expression of the will of the people at the polls. 
In the following year, an additional act provided for the 
appointment of federal supervisors of elections whose 
duties it should be to take active part in suppressing 
fraudulent practices and generally to make effective the 
laws for protecting the voters and insuring the freedom 
and purity of elections. 

This system of National regulation, which in its admin- 
istration has been the subject of much contention, was 
repealed in February, 1894, and at present, aside from the 
provisions of the act of 1842, the control of the elections 
of representatives to Congress is wholly in the hands of 
the State governments. 

In 1866, Congress prescribed by law an uniform man- 
ner for the election of the senators by the different State 
legislatures. 

By this enactment, the legislature of each State, which 
was elected next preceding the expiration of the time for 



THE CONSTITUTION. I 53 

which any senator was chosen to represent such State in 
Congress, proceeds on the second Tuesday after its or- 
ganization to elect a senator in substantially the following 
manner : — 

The members of each branch of the legislature individ- 
ually vote viva voce for one person as senator in Con- 
gress, and the name of the person so voted for, who 
receives a majority of the votes cast in either house, is 
entered on its journal with a record of this fact. 

At noon on the following day, the members of the two 
houses convene in joint assembly, and if the same person 
has received a majority of the votes for senator in each 
house, he is declared to be elected. If, however, no per- 
son received a majority of the votes in each house, then 
the two in joint assembly name by viva voce vote a 
person as senator, and if a person receives a majority of 
the votes in this body, he is declared to be elected. If 
no person receives such a majority on the first day, the 
joint assembly is required to meet at noon on every suc- 
ceeding day during the session and take at least one vote 
until a senator is elected. 

The reservation to the different States of the ultimate 
control as to the place of choosing their senators pre- 
vents Congress, should it from any reason ever be so 
inclined, from impeding the power of the legislatures to 
elect, and from interfering with these bodies by com- 
pelling them to meet at other places than those which 
their respective States have selected as their seats of 
government. 

2 The Congress shall assemble at least once in every Year, 



154 °UR SYSTEM OF GOVERNMENT. 

and such Meeting shall be on the first Mojiday in December, 
unless they shall by Law appoifit a different Day. 

The whole course of the history of the English Parlia- 
ment in its struggle to secure the liberty of the people 
against the encroachments of the Crown enforced upon 
the Convention the necessity of frequent and certain 
sessions of Congress. 

Although by our Constitution the province of the 
Executive is clearly defined, yet the great powers neces- 
sarily vested in this department are susceptible of being 
oppressively and tyrannically employed, and, perhaps, 
on some extreme occasion of social or political disturb- 
ance might be insidiously used as a means of subverting 
our free government and the Constitution. Though not 
a probability, such a thing is a possibility, and one safe- 
guard against such a possibility lies in the frequent 
assembling of Congress, which will always jealously scruti- 
nize anything that appears like an unusual or unconstitu- 
tional act on the part of the administrative branch of the 
Government. 

Also, as the ordinary responsibilities resting on Congress 
are of so grave a nature, and as the exigencies that it 
must meet and provide for are so numerous and varying, 
annual sessions of this body are imperative, both as insur- 
ing a prompt meeting of any danger to the Republic, 
whether of external or of internal origin, and as a means 
of properly transacting the business naturally and neces- 
sarily devolving upon the legislative branch. 

The fixing of the date of the assembling of Congress, 
subject to the right of this body to appoint by law a 



THE CONSTITUTION. I 55 

different day, is also an eminently wise precaution, for 
by this, possible trouble through the failure of the two 
branches of the National legislature to agree on a day of 
meeting is avoided, and at the same time this department 
of the Government is rendered independent in this respect 
of any authority but its own and that of the organic law 
which created it. The selection of the time for assem- 
bling is properly and for many obvious reasons placed in 
the hands of Congress itself, but failing to exercise its 
discretion, the people, through the Constitution calls it 
together on the first Monday in December. 

In the absence of express legislation on the subject, in 
the odd years the first, or long session of Congress com- 
mences on the Constitutional date and continues usually 
until the last of June, though not infrequently to the first 
of August; the second, or short session commencing in 
the even years, necessarily terminates on the fourth day 
of the following March, since the term for which the 
House is elected then expires. Since 1789, there have 
been thirty-one sessions of Congress commencing at dates 
other than that conditionally prescribed in the Constitu- 
tion. Of these, nineteen began on days fixed by law, and 
twelve 1 were convened by the President. Until 1853, the 
second session was finally adjourned at midnight on the 
third of March, since that time, however, it has held over 
until noon of the following day, though all the trans- 
actions of Congress on the fourth, bear the date of the 
third. 

Sec. 5. l Each House shall be the Judge of the Elec- 



'See Art. II. Sect. 3. 



156 OUR SYSTEM OF GOVERNMENT. 

tions, Returns and Qualifications of its own Members, and 
a Majority of each shall constitute a Quorum to do Busi- 
ness; but a smaller Number may adjourn from day to day, 
and may be authorized to compel the Attendance of absent 
Members, in such Manner, and under such Penalties as 
each House may provide. 

The first part of this clause, making " Each House the 
Judge of the Elections, Returns and Qualifications of its 
own Members, "was undoubtedly suggested to the Con- 
vention by the fact that at that time the English House 
of Commons possessed a similar power. In England, 
however, owing to the " scandalous partiality" with which 
the controverted election cases were decided, such cases 
were, in 1868, transferred by an act of Parliament before 
the judges of the superior law courts for trial. 

In our Congress, and especially in the House of Repre- 
sentatives where the political feeling runs higher, and 
where the minority is more inclined to obstruct legisla- 
tion by dilatory tactics and factious opposition than in 
the Senate, the dominant party, if its majority is small, is 
often impelled as much by considerations of partisan 
advantage as by right and justice in deciding between 
rival claimants to a seat. 

The power of the two Houses in deciding these cases 
is complete. Matters of bribery or of intimidation or 
any corrupt practices in the elections may be taken into 
consideration ; and should the executive of a State refuse 
to grant a certificate of election to one who claims to be 
duly elected, this fact, of course, is not decisive as to his 
rights. 



THE CONSTITUTION. I 57 

The object of requiring a majority of each House to 
constitute a quorum is to insure that all public business 
shall be transacted by representative and responsible 
bodies and not by cliques or factions. On the other 
hand, to require two-thirds or three-fourths of each House 
for the transaction of business would enable a compara- 
tively small minority, if factiously inclined, to block the 
wheels of legislation by obstinately absenting themselves. 

The presence of a majority is sufficient to constitute 
the quorum required. The quorum being actually pres- 
ent, any number may transact the business. "The Con- 
stitution provides that a majority of each [House] shall 
constitute a quorum to do business. In other words, 
when a majority are present, the House is in a position 
to do business. Its capacity to transact business is then 
established, created by the mere presence of a majority, 
and does not depend upon the disposition or assent or 
action of any single member or fraction of the majority 
present. All that the Constitution requires is the pres- 
ence of a majority, and when the majority are present 
the power of the House arises. But how shall the 
presence of a majority be determined ? The Constitution 
has prescribed no method of making the determination, 
and it is therefore within the competency of the House to 
prescribe any method that may be reasonably certain to 
ascertain the fact. 

It may prescribe answer to the roll-call as the only 
method of determination ; or require the passage of 
members between tellers, and their count as the sole test ; 
or the count of the Speaker or the Clerk, and an 



158 OUR SYSTEM OF GOVERNMENT. 

announcement from the desk of the names of those who 
are present." ' 

Under the rules of the House, fifteen members, includ- 
ing the Speaker, can compel the attendance of the absent 
members. To compel such attendance, the roll of the 
House is called and the absentees noted ; the doors are 
then closed, and those for whom no sufficient excuse is 
offered may, on the order of a majority of those present, 
be arrested and brought before the House which shall 
determine on what condition they shall be discharged 
from arrest. The House also, if it sees fit, may impose a 
fine for absence. The same power to compel attendance 
is also possessed by a quorum which may effect this end 
by the same means that the Constitution gives to " a 
smaller number." 

The term, " Qualifications," as here used, has been 
extended by both the House and Senate beyond those of 
age, citizenship, and inhabitancy as set forth in the Con- 
stitution. Each House holds itself justified in inquiring 
in extreme cases into the character and antecedents of 
the person elected, and in determining whether he can be 
admitted consistently with its own dignity and with the 
best interests of the country. 

2 Each House may determine the Rules of its Proceedings, 
punish its Members for disorderly Behaviour, and with the 
Coiicurrence of two thirds, expel a Member. 

The " Rules of Proceeding," commonly termed parlia- 



^nited States vs. Ballin, 146 U. S., 1. 



THE CONSTITUTION. I 59 

mentary law, are the regulations in accordance with which 
each branch of Congress conducts its sessions and trans- 
acts its business. It is usual for the House of Represen- 
tatives at the opening of its first session to adopt the rules 
of the preceding House, and then for its committee on 
rules to recommend such changes as may be deemed 
expedient. Should such action not be taken, the business 
is conducted until the new rules are formulated and 
adopted, by general parliamentary law; i. e., by the gen- 
eral principles and usages that are ordinarily observed in 
all deliberative bodies. 

The rules of procedure in the House of Representa- 
tives, owing to its large membership and the consequent 
tendency to limit discussion, are very complex ; in the 
Senate, where the spirit of conservatism is stronger and 
greater freedom of debate is possible, the rules are much 
more simple and more in accord with the principles of 
general parliamentary law. 

The power to " punish its Members for disorderly 
Behavior" is another necessary prerogative of each House, 
and one which, with the power to determine its rules of 
proceeding, must have been implied from the very exist- 
ence of these bodies as legislative assemblies, even if 
no express provision to this end had been made in the 
Constitution. 

The power to punish extends to all cases in which the 
offense is such as in the judgment of the House detracts 
from its dignity, or its ability to carry on its business, or 
as unfits the offending person for the performing of his 
legislative duties. The punishment for a lesser offense is 
usually a reprimand before the House against which it 



l6o OUR SYSTEM OF GOVERNMENT. 

was committed. The more serious cases may, of course, 
be followed by expulsion. That this severe punishment 
may not be harshly or inconsiderately inflicted, and also 
that it may not be employed by a partisan majority as a 
means to get rid of a troublesome opponent, the Consti- 
tution wisely requires the concurring votes of two-thirds 
of either branch to expel one of its members. 

The right of either House to punish for contempts, 
i. e., for disorderly or abusive language in its presence or 
disobedience to its orders, is limited strictly to its own 
members and to certain other cases where the power is 
necessarily implied. It has been held by the Supreme 
Court of the United States " that although the House 
can punish its own members for disorderly conduct, or 
for failure to attend its sessions, and can decide cases of 
contested elections and determine the qualifications of its 
members, and exercise the sole power of impeachment of 
officers of the government, and may, where the examina- 
tion of witnesses is necessary to the performance of these 
duties, fine or imprison a contumacious witness, there is 
not found in the Constitution of the United States any 
general power vested in either House to punish for 
contempt." * 

The principle which denies to the Houses of Congress 
the general power to punish for contempt is as old as 
that provision of the Magna Charta which secured to 
every person freedom from fine or imprisonment " save 
by the judgment of his peers or the law of the land." 2 

Courts of justice, however, have the general power to 



^ilbourn vs. Thompson. 103, U. S. 168. 2 See Amendment V. 



THE CONSTITUTION. l6l 

punish for contempt of their proceedings and authority, 
and their exercise of it is held to be the judicial applica- 
tion of the "law of the land." 

In the cases above mentioned where each House may 
punish for contempt others than its own members, it has, 
to a certain extent, a judicial character, and to this 
extent and no further, it shares with the ordinary courts 
of justice the general power to fine or imprison those 
who may refuse obedience to its orders ; this imprison- 
ment, however, cannot extend beyond the close of the 
session of Congress during which the offender was taken 
into custody, for then the authority under which he was 
committed ceases. 

This lack of the general power on the part of either 
House to punish persons not its members for disturbing 
its sessions or in any way committing an offense against 
it, by no means leaves them defenseless. 

"The courts are as open to the United States as they 
are to the private citizen, and both can there secure by 
regular proceedings ample protection of all rights and 
interests which are entitled to protection under a govern- 
ment of a written constitution and laws." * 

$Each House shall keep a Journal of its Proceedings 
and from time to time publish the same, excepting such 
Parts as may in their Judgment require Secrecy; and the 
Yeas and Nays of the Members of either House on any 
question shall, at the Desire of one fifth of those Present, 
be entered on the Journal. 



'Kilbourn vs. Thompson, 
11 



1 62 OUR SYSTEM OF GOVERNMENT. 

One of the strongest safeguards of republican institu- 
tions is the accountability of those in power to the people. 
The object of this clause is to insure this accountability 
on the part of the individual members of Congress by a 
public and authentic record of their official acts. 

The journal of each House sets forth in detail all mat- 
ters of business brought before it, such as petitions, 
measures introduced, votes, bills passed, etc. The record 
of each day is made up by the Clerk and read at the 
opening of the next day's proceedings, when, subject to 
amendment or alteration, it is approved. At the close of 
each session the record of each House, the " Journal of 
its Proceedings," is published and widely distributed 
throughout the country. 

In the Convention it was proposed that a single mem- 
ber should be authorized to call for the yeas and nays ; 
had this view prevailed, a single person wilfully or fac- 
tiously inclined would have had it in his power to cause a 
great expenditure of time in frequent roll-calls when 
neither reason nor occasion might exist for demanding 
them. Even the power given to the minority by the 
clause as it now stands is frequently diverted from its real 
purpose of holding the majority individually responsible 
for any arbitrary or oppressive act and made a means for 
obstruction and delay. As the roll-call at present con- 
sumes somewhat more than forty minutes, the right to 
demand it on any question, however unimportant, obvi- 
ously gives to a small minority great power to obstruct 
business, to "filibuster." 

For the transaction of ordinary legislative business both 
Houses sit in open session ; but when the Senate acts 



THE CONSTITUTION. 1 63 

upon treaties or upon nominations made by the President, 
its debates are kept secret, for then, character and mo- 
tives, in the one case, of individuals, and in the other, of 
nations, must be freely and unreservedly discussed and 
criticised, and often in a manner that could not fail to 
give offense or work injury if the proceedings were 
public. 

* Neither House, during the Session of Congress, shall, 
without the Consent of the other, adjourn for more than 
three days, nor to any other Place than that in which the 
two Houses shall be sitting. 

As Congress is made up of the House of Representa- 
tives and the Senate, and as in the transaction of the gen- 
eral legislative business each is powerless without the 
other, the obvious purpose of this clause is to prevent 
either alone from putting an end to the session in which 
both are equally interested and equally responsible. An 
adjournment of either House for a short time, three days 
or less, might in certain circumstances be desirable or 
imperative, while at the same time the other could profit- 
ably continue its session, but for an adjournment of more 
than three days, the consent of both branches is properly 
made necessary by this clause. 

"Where the two Houses adjourn for more than three 
days, and not to or beyond the period fixed by the Con- 
stitution or law for the next regular session, the session is 
not thereby terminated, but continues until an adjourn- 
ment without a day, or until the next regular session." r 



'Rules and Practice, H. R. 53d Congress, p. 244. 



1 64 OUR SYSTEM OF GOVERNMENT. 

SEC. 6. 1 The Senators and Representatives shall receive 
a Compensation for their Services, to be ascertained by 
Law, and paid out of the Treasury of the United States. 
They shall in all Cases, except Treason, Felony, and 
Breach of the Peace, be privileged from Arrest during 
their Attendance at the Session of their respective Houses, 
and in going to and returning from the same; and for any 
Speech or Debate in either House, they shall not be ques- 
tioned in any other Place. 

Among the writers on political subjects there is a great 
difference of opinion in regard to the payment of mem- 
bers of the legislative branch of the government. Those 
who argue that such payment should not be made, urge 
that the pecuniary compensation tends to lead men to 
regard the position as one to be sought after for the 
money to be received, rather than as a place of high 
dignity and trust, affording to the person who occupies it 
opportunity to be useful to the country. 

In England, the members of the Parliament are not 
paid, but they frequently receive from their respective 
constituents large sums of money and other presents. 
While these gifts are by no means bribes, yet there is 
unavoidably some obligation attached to them, and the 
receiving or the prospective receiving of them may often 
to a greater or less extent influence the votes of the 
members and interfere with their independence in meas- 
ures in which the donors are interested. 

In America, the members of Congress must practically 
give up their whole time to legislative work ; hence, if 
they should not receive a remuneration for their services, 



THE CONSTITUTION. 1 65 

either a general system of largesses would be necessary, 
which would be dangerous, at least, to their independence, 
or legislation would be confided to the hands of the 
wealthy, a thing at complete variance with our form of 
government and our institutions. 

The compensation paid to the members of Congress is 
"to be ascertained by Law; " that is, by Congress itself. 
There was considerable objection in the Convention to 
giving this power of fixing their own salaries to those 
who were to receive them, but experience has shown that 
the people will hold their representatives to a strict 
accountability for any abuse of power in this respect. 

The provision that the salaries of the members shall be 
paid out of the Treasury of the United States is also an 
eminently wise one, both as enforcing the fact that they 
are the legislators of the nation, and not merely the 
servants of the States from which they come, and as 
avoiding the evil results on the attendance at Congress, 
such as existed under the Confederacy from the parsi- 
mony or indifference of the individual States. 

The different rates of compensation established by law 
have been as follows : 



From 1789 to 181 5, 


$6.00 a day. 1 


1815 " 1817, 


$1,500 a year. 


1817 " 1855, 


$8.00 a day. 


" 1855 " 1865, 


$3,000 a year. 


1865 " 1871, 


$5,000 a year. 


1871 " 1874, 


$7,500 a year, 


" 1874 " , 


$5,000 a year, 



'The per diem rates was for the time occupied by the actual sessions 
of the Houses. 



1 66 OUR SYSTEM OF GOVERNMENT. 

The pay of the members of the two Houses has been 
the same except for the year 1795, when the Senators 
received $7.00 a day. The Speaker of the House and 
the President pro tempore of the Senate at present receive 
$8,000 a year each. 

The increase in the pay of the members made in 1873 
was received with much disfavor by the people, justly 
severe criticism being caused by the fact that the bill 
providing for this increase was passed on March 3, 1873, 
when Congress was about to finally adjourn, and made to 
take effect from March 4, 1871. The general indignation 
over the " salary grab," as it was called, was so great that 
many of those who had favored it were not returned to 
Congress, and the law itself was repealed at the next 
session. In addition to the compensation fixed by gen- 
eral law, each member of Congress is allowed a sum 
equivalent to his actual traveling expenses by the most 
direct route from his home to the seat of government and 
return ; these traveling expenses are paid once for each 
session of the branch to which he belongs. 

The privilege of freedom from arrest except in criminal 
cases, secured to the members by this clause, has for its 
object the maintenance of the independence of Congress 
against interference by the other departments or by the 
State authorities. Originating early in the history of the 
English House of Commons as a protection against the 
Crown, " it belongs to Congress in common w r ith all 
other legislative bodies which exist, or have existed in 
America since its first settlement, under every variety of 
government." 1 

^tory, Commentaries on the Constitution, Sect. 856. 



THE CONSTITUTION. 1 67 

"Treason, felony, and breach of the peace" include all 
offenses of a criminal nature. A person committing a 
crime would scarcely be fit to take part in the making of 
laws ; or if a member were held for trial and afterwards 
found innocent, the open question as to his guilt after 
enough evidence had been adduced to lead to an indict- 
ment by a grand jury, or to justify a magistrate in issuing 
a warrant for his arrest, would render his inability to 
attend to his legislative duties an advantage rather than a 
disadvantage to the country. 

As the object of this clause is to secure the presence 
of the members at the sessions of their respective 
Houses, the privilege of freedom from arrest undoubtedly 
extends during these sessions, whether they are in actual 
attendance or not. Also a slight deviation from the ordi- 
nary route of going to or returning from the Capital for 
rest or convenience or on account of sickness, or a 
reasonable delay there after the session has closed does 
not affect the exemption. 

This privilege of the member is also a privilege of the 
House to which he belongs and of the people whose 
servant he is. Hence, he cannot, through any act of his 
own, waive this exemption, for the arrest is void from the 
beginning, and he may be released and the officer taking 
him into custody punished on proper legal steps being 
taken by any citizen. 

The next important privilege secured to the members 
of Congress by the Constitution is that of freedom of 
debate, a right which in England was long a matter of 
contest between the Crown and Parliament, but at last 
definitely settled by the Revolution of 1688 and incor- 



1 68 OUR SYSTEM OF GOVERNMENT. 

porated into the Bill of Rights, (Art. 9.) This privilege, 
like that just discussed, belonged to all the colonial legis- 
latures, and is now a constitutional principle in every State 
in the Union. 

The exemption from liability is, however, for the words 
spoken in speech or debate and printed in the official 
report of Congress. Should the members cause them to 
be published in any other form or manner, the privilege 
then ceases, and the responsibility attaches as in the case 
of an ordinary libelous publication by a private person. 

2 No Senator or Representative shall, during the Time 
for which he was elected, be appointed to any civil Office 
under the Authority of the United States, which shall have 
been created, or the Emoluments whereof shall have been 
encreased during such time; and no Person holding any 
Office under the United States, shall be a Member of either 
House during his Continuance in Office. 

The object of the first part of this clause is to prevent 
a member of Congress from being influenced by corrupt 
or selfish motives in voting to create a new office or to 
increase the emoluments of an existing one. The protec- 
tion is, however, incomplete, for the restriction in any 
particular case extends only to the expiration of the term 
of the member, who may then be appointed to the posi- 
tion that he as a legislator has been instrumental in 
making, or the salary of which he has voted to increase. 

To have made the restriction in the nature of a perma- 
nent disqualification would have been harsh and dissonant 



THE CONSTITUTION. 1 69 

with our institutions, which are based on confidence rather 
than on suspicion. In this, as in so many other respects, 
the Constitution, instead of seeking to secure absolute 
immunity from abuse of power by iron rules, looks to the 
people to hold to a strict accountability those to whom 
they have entrusted the control of their governmental 
affairs ; and if the people fail to do this, no safeguard, 
Constitutional or otherwise, will avail. 

The second part of the clause prevents any person from 
having legislative and executive or judicial power at the 
same time. The propriety and wisdom of this provision 
cannot be questioned, for it secures independence of 
action on the part of each of the three great branches of 
our Government and maintains their sense of responsibility 
to one another and to the people ; in short, the general 
principle involved lies at the base of our whole political 
structure. 

In England, the cabinet ministers, corresponding to our 
cabinet officers 1 in that they are respectively the heads of 
the different administrative departments, are also members 
of Parliament. 

It has been strongly urged that' in our own country the 
principle of clearly defined separation between the execu- 
tive, legislative, and judicial branches, might advantage- 
ously admit of exception in a similar regard, for the 
cabinet officers, upon whose recommendations and reports 
Congress is to a very considerable extent obliged to 
depend, would then be able to explain and defend the 
measures that they propose, and to take part in the 



'See discussions on Art. II., Sect. 2, CI. 1. 



170 OUR SYSTEM OF GOVERNMENT. 

discussions upon matters generally pertaining to their 
respective departments. 

It is also thought that this direct and open responsibility 
of the cabinet officers would compel the President, if he 
wished to be influential in shaping the legislative policy of 
the country, to call around himself, in this capacity, none 
but statesmen of high standing and recognized ability ; 
since upon them would largely depend the successful 
embodying in legislation of the executive plans and 
proposals. 

The need of cabinet officers in Congress is, however, 
avoided by its system of committees, whose members 
devote themselves almost as exclusively and zealously to 
their special work as do the chiefs of the different execu- 
tive departments whose reports they carefully study, 
and upon whom they constantly call for information. 
Through reports, hearings, discussions, etc., each com- 
mittee makes a careful investigation of the matters within 
its especial domain, formulates its bills, and stands ready 
to explain or defend them before the House or the Senate, 
as the case may be, and, when called upon, to give such 
information as will enable the measure proposed to be 
passed upon intelligently and wisely. 

The committee system seems, then, to render the pres- 
ence of cabinet officers on the floor of either House 
superfluous, and this is a matter of no slight moment, 
for the effect of their taking part in the deliberations of 
Congress would undoubtedly give to the President great 
influence over this body, and the directing or shaping of 
legislative policy is no part of the executive function. 



THE CONSTITUTION. 171 

The responsibility of the senators and representatives is 
to the people, not to the President. 

SEC. 7. *All Bills for raising Revenue shall originate 
in the House of Representatives; but the Senate may pro- 
pose or concur with Amendments as on other Bills. 

The Magna Charta provided as a safeguard against 
burdensome and oppressive levies by the Crown, that, 
save the three customary feudal aids, " no scutage or aid 
shall be imposed in our kingdom, unless by the general 
council of our kingdom." l 

When the Parliament assumed its present constitution 
of peers, bishops, and commons, each of these three 
classes independently determined the amount of supplies 
to be granted to the king by the order that it represented. 
About the beginning of the fifteenth century, however, 
this system gave way to general parliamentary legislation 
on all matters pertaining to the public revenue, and as 
the greater part of this revenue was derived from the 
mass of the people, the representatives of the people 
claimed the exclusive right of originating all bills for 
raising and expending it. The House of Commons early 
learned to insist on a " redress of grievances " as a condi- 
tion for a vote of supplies to the Crown, and this became 
an efficient means in its hands of checking abuses and 
narrowing the royal prerogatives. " And, indeed, we see, 
that since the establishment of the right of the repre- 
sentatives of the people to grant or refuse subsidies to 

^ee p. 23. 



172 OUR SYSTEM OF GOVERNMENT. 

the Crown, their other privileges have been continually 
increasing." Though these representatives were not in 
the beginning admitted into Parliament but upon the 
most disadvantageous terms, yet they soon found means, 
by joining petitions to their money bills to have a share 
in framing those laws by which they were in the future to 
be governed ; and this method of proceeding, which at 
first was only tolerated by the king, they afterwards con- 
verted into an express right, by declaring under Henry 
IV., that they would not, thenceforward, come to any 
resolutions with regard to subsidies, before the king had 
given a precise answer to their petitions." J 

At present, the control of the House of Commons over 
the public purse is absolute ; the assent of the Lords to 
the revenue and supply bills is but a matter of form, and 
any interference on their part in these matters would be 
instantly and vigorously resented. It may reasonably be 
said that to the increasing power of the popular branch 
in this respect, is due the fact that to-day it practically 
constitutes the English government. 

The Convention in giving to the House of Representa- 
tives the sole power of originating bills for raising revenue 
evidently followed the lines of English precedent, though 
the conditions that have rendered necessary the possession 
of such a power by the House of Commons do not exist 
under our form of government. 

The provision bearing upon this matter first appeared 
in the Convention as a resolution, "That all bills for rais- 
ing or appropriating money and for fixing the salaries of 



l De Lolme, The English Constitution, Ch. VI. 



THE CONSTITUTION. I 73 

the officers of the government of the United States, shall 
originate in the first branch of the legislature, and shall 
not be altered or amended by the second branch." This 
was introduced in connection with the compromise report 
on the organization of the Senate and was intended as a 
restriction on the power of the smaller States arising from 
the equality of representation with the others in this 
branch. The present clause was afterwards substituted, 
and the House of Representatives given the power of 
originating all bills for raising revenue ; i. e., for levying 
taxes. 

The Constitution says nothing as to the origination of 
bills for the expenditure of the public money, but the 
House of Representatives, following the practice in Eng- 
land, has from time to time asserted its claim to exclusive 
power in this respect ; this claim has been tacitly admitted 
by the Senate so far as the general appropriation bills are 
concerned, but bills appropriating money for purposes 
other than to meet the current and general expenses of 
the government have originated about as frequently in the 
second branch of our National legislature as in the first. 
The power given to the House of Representatives by 
this clause, and the power that it also exercises of origi- 
nating all the general appropriation bills have, however, 
but little or no significance, for the fact that the Senate 
may amend any bill of this nature, makes the control of 
this branch over matters of public revenue and public 
expenditure as complete as if no restriction whatever on 
its power in this respect existed. 

2 Every Bill which shall have passed the House of Repre- 



174 OUR SYSTEM OF GOVERNMENT. 

sentatives and the Senate, shall, before it become a Law, be 
presented to the President of the United States; If he 
approve he shall sign it, but if ?iot he shall return it, with 
his Objections to that House in which it shall have origi- 
nated, who shall enter the Objections at large on their 
Journal, and proceed to reconsider it. If after stich 
Reconsideration two thirds of that House shall agree to 
pass the Bill, it shall be sent, together with the Objections, 
to the other House, by which it shall likewise be reconsid- 
ered, and if approved by two thirds of that House, it shall 
become a Law. But in all such Cases the Votes of both 
Houses shall be determined by Yeas and Nays, and the 
Names of the Persons voting for and against the Bill shall 
be entered on the Journal of each House respectively. If 
any Bill shall not be returned by the President withi?i ten 
Days (Sundays excepted) after it shall have been presented 
to him, the Same shall be a Law, in like Manner as if he 
had signed it, unless Congress by their Adjournment prevent 
its Return, in which Case it shall not be a Law. 

Every bill that is introduced into either branch of Con- 
gress is preceded by the so-called enacting clause, " Be it 
enacted by the Senate and House of Represe?ztatives in 
Congress assembled!' This clause is essential, and if a 
motion to strike it out prevails, it is equivalent to the 
rejection of the measure proposed. The bill in its pas- 
sage through either House must be read three times ; 
first, by its title, when the question is, " Shall it be read a 
second time?" The first reading is always ordered as a 
matter of form, for it merely serves to give notice that a 
measure of the nature indicated by the title is to be 



THE CONSTITUTION. I 75 

presented ; the second reading regularly occurs on an- 
other day, when the bill is read in full, after which the 
debate occurs and amendments may be made ; in the 
House of Representatives the question then becomes, 
" Shall the Bill be engrossed and read a third time?" " If 
decided in the affirmative, it shall be read the third time 
by title, unless the reading in full be demanded by a 
Member, and the question shall then be put upon its 
passage." * 

In the Senate, the proceeding is similar, but the en- 
grossment is not made until the measure has finally 
passed. The vote on the third reading as to the final 
passage of the measure is ordinarily a matter of form, 
the favorable vote on the second reading being usually 
held as decisive ; occasionally bills are defeated at this 
stage ; no amendments, however can be made after they 
have passed to be read the third time. 

A bill is engrossed when it is printed 2 with all the 
amendments incorporated in the form in which it was 
passed when the order to engross was made, and the date 
of its passage certified by the Clerk of the House or the 
Secretary of the Senate, according to the branch in 
which it had been pending. The Senate has a standing 
committee on engrossed bills which examines all bills, 
amendments, and joint resolutions, passed by this branch 
before they are allowed to go out of its possession. 

"After a bill has passed both Houses it is enrolled, 3 
i. e.y printed under the supervision of the Clerk of the 



'Rules of the H. R., 53d Congress, p. 221. 

2 Before the 53d Congress the rules required that the engrossment 
and enrollment should be in writing. 



176 OUR SYSTEM OF GOVERNMENT. 

House or the Secretary of the Senate, according to the 
branch in which it originated ; it is then examined by the 
joint committee of the two Houses on enrolled bills, 
reported to the House of Representatives, and signed by 
the Speaker, after which it is transmitted to the Senate 
where it is signed by the presiding officer of that body. 
It is then presented to the President for his approval. 
After the bill is signed by the President and thus becomes 
a law, it is deposited in the office of the Secretary of 
State. 

The object of the three readings of a bill required by 
the rules of both Houses is to guard against haste or sur- 
prise in legislation, and also against the possibility of the 
surreptitious passage by a comparatively small number, of 
measures that would be disapproved by the majority. 

"No clause in the Constitution either expressly or by 
necessary implication prescribes the mode in which the 
fact of the original passage of a bill by the House of 
Representatives and the Senate shall be authenticated, or 
precludes Congress from adopting any mode to that end 
which its wisdom suggests. Although the Constitution 
does not expressly require bills that have passed Congress 
to be attested by the signatures of the presiding officers 
,of the two Houses, usage, the orderly conduct of legisla- 
tive proceedings, and the rules under which the two 
bodies have acted since the organization of the govern- 
ment, require that mode of authentication. 

The signing by the Speaker of the House of Represen- 
tatives, and by the President of the Senate, in open 
session, of an enrolled bill, is an official attestation by the 
two Houses of such a bill as the one that has passed 



THE CONSTITUTION. I 7/ 

Congress. When this is approved by the President it 
becomes of binding validity and unimpeachable." 1 

From the respect due to the co-equal departments of 
the Government, the judiciary will not consider anything 
further than these official signatures of the President and 
of the presiding officers of the House and the Senate in 
case the validity of a statute should be attacked on the 
ground that it was not duly and properly passed. 

The giving of the veto power to the President was 
suggested by the fact that a power of a similar nature 
was formerly possessed by the sovereign of England. In 
that country, however, it has not been exercised since 
1692, and is now practically obsolete. 

The possession of this power does not make the Presi- 
dent a participant in the legislative functions, it being 
wholly of a restraining, or negative character. It is not 
a part of the business of the Executive to initiate or 
forward legislative measures or in any way to modify 
them, these being matters which the people through the 
Constitution have expressly and exclusively confided to 
Congress. 2 Only after the law-making body has acted, 
can the power of negativing any particular measure be 
exerted. 

The veto power constitutes an effective check in the 
hands of the President against any disposition of the 
legislative department to encroach upon the domain of 
the executive authority ; this seemed to be one of the 
chief arguments in its favor with the Convention, and its 
utility in this respect has been demonstrated several times 



'Field vs. Clark, 143, U. S., 649. 2 Article I., Sect. 1. 
12 



T78 OUR SYSTEM OF GOVERNMENT. 

in the history of our country. It also furnishes an addi- 
tional security against crude and unwise laws, not only 
through its direct application but also through the fact 
that Congress will be more circumspect in passing such 
measures from the knowledge that they are to be closely 
scrutinized and perhaps negatived by the President, and 
their injudicious nature thus exposed to the people. 

The discretion of the President in this respect is com- 
plete. For abuse of the veto power he would undoubt- 
edly be liable to impeachment, but in regard to any 
particular measure that has passed both Houses, he may 
base his disapproval of it on any grounds, whether of 
policy or of expediency, or because he disagrees with 
Congress in regard to its constitutionality ; in the last 
case, even if the reasons he assigns are contrary to the 
judicially expressed opinion of the Supreme Court, the 
validity of the negative would be in no wise affected 
thereby. 

As the veto of a measure that has duly passed both the 
Senate and the House of Representatives is a grave 
matter, and one in which the people are ordinarily to be 
the sole judges between the President and Congress, it is 
necessary that the reasons assigned for the executive dis- 
approval be publicly and authentically established, and 
that each member of the legislative branch be held re- 
sponsible for his attitude in the matter. This is effected 
in regard to the President by requiring him to state his 
objections when he returns the bill to the House in which 
it originated, and by having these objections entered at 
length in the journal of that House, while the individual 
accountability of the members of Congress is fixed by 



THE CONSTITUTION. I 79 

requiring their votes when the measure is reconsidered to 
be by yeas and nays. 

The provision that if the bill is retained ten days by 
the President it shall become a law without his approval 
compels him if he wishes to set it aside to veto it openly 
and assign his reasons therefor ; the unavoidable excep- 
tion to his direct and public accountability is when Con- 
gress adjourns before the expiration of the limit fixed for 
the return of the bill ; in this case, he can nullify the 
measure by taking no action whatever. If Congress 
could by adjourning and preventing the return of bills 
thus insure them against being vetoed, it could practically 
render the veto power itself null by placing in the hands 
of the President just before the close of the session all 
such measures as might possibly or presumably be ob- 
jectionable to him. Congress possesses, however, an 
efficient check against any serious evil arising from the 
use of this so-called "pocket veto" by laying these 
measures before the President early enough to compel 
him to take open action if he wishes to negative them. 

The veto power, if absolute, might easily be converted 
by an obstinate or perverse Executive from what it was 
designed to be, a wholesome restraint upon the legislative 
department, into a means of obstruction and injury. This 
possibility is wisely guarded against by the provision that 
it may be overcome by the concurring vote of two-thirds 
of each House, i. e., two-thirds of those present if there 
be a quorum. 

During the administrations of the first six Presidents 
the veto power was but rarely exercised ; Washington 
vetoed 2 bills, Madison 6, Monroe i , Jefferson and the 



l8o OUR SYSTEM OF GOVERNMENT. 

two Adamses none at all. Jackson set the example of a 
free use of the power by vetoing 12 bills, after him Tyler 
vetoed 9, Polk 3, Pierce 9, Buchanan 7, Lincoln 3, John- 
son 21, Grant 43, Hayes 12, Arthur 4, and Cleveland, 
during his first term, 301. 

Beyond the exception expressly made, other parts of 
the Constitution impliedly modify the application of the 
veto provision in this clause. 

When Congress in accordance with Article V. proposes 
amendments to the Constitution, the joint resolution of 
the two Houses does not require the approval of the 
President to render them effective. Also, in determining 
the electoral vote, Amendment XII. places the authority 
in the legislative body alone. 

In 1865, Congress passed a joint resolution declaring 
that the electoral votes cast for President and Vice Presi- 
dent by the States that had been in rebellion should not 
be received or counted, and in the following year by a 
similar measure provided that no members should be ad- 
mitted to either House from these States. It was held 
that neither of these resolutions required the assent of the 
President, but it is questionable if either of them had any 
binding effect, for the Amendment XII., just referred to, 
undoubtedly gives to Congress the discretion of accept- 
ing or rejecting the electoral votes when they are offered, 
and of this discretion it cannot divest itself by any gen- 
eral rule or resolution. The Constitution also declares 
that "Each House shall be the Judge of the Elections, 
Returns, and Qualifications of its own Members," and 
neither House can surrender this power, or share it with 
the other. 



THE CONSTITUTION. l8l 

*Every Order, Resolution, or Vote to which the Concur- 
rence of the Senate and House of Representatives may be 
necessary (except on a question of Adjournment) shall be 
presented to the President of the United States; and before 
the Same shall take Effect, shall be approved by him, or 
being disapproved by him, shall be repassed by two thirds 
of the Senate and House of Representatives, according to 
the Rules and Limitations prescribed in the Case of a Bill. 

The object of this clause is to prevent Congress from 
avoiding the veto of the President by passing under the 
guise of joint or concurrent resolutions measures that are 
to all intents and purposes laws. In both Houses the 
joint resolutions, so far as their introduction and passage 
are concerned, are treated in every respect as bills, and 
when signed by the President have all the validity and 
binding force of statutes ; hence, the necessity for an 
executive restraint in this regard, similar to that which 
exists upon the general power of legislation. In practice, 
a clear distinction between the subject-matter of bills and 
of joint resolutions is not made, but ordinarily, ''proposi- 
tions to give authority or directions to public officers 
in certain respects ; to give the consent of Congress on 
occasions when such consent is required ; to continue in 
force appropriations ; and, generally, measures whose 
operation is limited to certain specific occasions or periods 
and not designed to be permanent law, are expressed by 
joint resolutions." I 

The question of adjournment is wisely placed beyond 



'Rules and Practice, H. R. 53d Congress, p. 520. 



1 82 OUR SYSTEM OF GOVERNMENT. 

the reach of the presidential veto, since a resolution in 
regard to this matter, if adopted, cannot have the nature 
of a law, and the power in the hands of the Executive to 
hold Congress in session contrary to its will might be 
used for purposes of coercion. 

For many years, the concurrent resolutions whose ef- 
fects do not extend beyond the two Houses have not 
been laid before the President. This practice is, however, 
confined within narrow limits, and though conflicting with 
the strict letter of the Constitution, can scarcely be said 
to conflict with its spirit. 

Sec. 8. Congress shall have Power — 

As has previously been pointed out, two governments, 
National and State, constitute our political system. If it 
lay within the power of the legislature of each to make 
laws upon all matters pertaining to the safety and welfare 
of the people, one of these governments would necessarily 
be subordinated to the other or an incessant conflict of 
authority would prevail. On the other hand, if to pre- 
vent this conflict of authority the legislative domain of 
each government were clearly marked out and definitely 
limited, there would be no means of meeting many of the 
exigencies which new social and economic conditions 
create, and which cannot be foreseen or even in the most 
general way anticipated. 

The Convention solved the problem without even real- 
izing its importance, so completely was its action the 
logical and practical necessity of the day. Certain legis- 
lative powers were definitely granted to Congress by the 



THE CONSTITUTION. I 83 

Constitution, 1 and the National Government made supreme 
as to these; 2 all other powers of this nature were left to 
be exercised by the governments of the States in such 
manner and under such restrictions as their respective 
constitutions might prescribe. 3 

Congress, then, can exercise only the legislative powers 
that are expressly or impliedly granted to it by the Con- 
stitution of the United States ; the legislature of a State 
can exercise all legislative powers except those expressly 
or impliedly denied to it by the National Constitution and 
the laws and treaties made in accordance therewith, and 
by the State Constitution. This proposition understood, 
our apparently complex governmental machinery becomes 
clear and simple. 

In the following eighteen clauses, in the first and third 
sections of Article VI., and in the Thirteenth, Four- 
teenth, and Fifteenth Amendments, is to be found the 
source of all the legislative authority that Congress can 
lawfully exercise. These, it will be seen, are almost 
exclusively such as pertain to the United States as a body 
politic and as a member of the family of nations, and to 
the people of the country as a whole. The common, but 
not less important relations of every-day life, matters of 
property and property rights, business affairs, domestic 
relations, the punishment of crimes, etc., are, with certain 
exceptions to be considered later, under the control of 
the individual States, the authority of whose legislatures 
is, ordinarily, sufficiently unlimited to enable them to 
meet the exigencies created by the changing social, 

'Article I., Sects. 1 and 8. Article I., Sect. 8, CI. iS. 
2 Article VI., Sect. 2. Amendment X. 



1 84 OUR SYSTEM OF GOVERNMENT. 

economic, and business life of the people, while their 
intimate knowledge of local needs and interests especially 
fit them to legislate on those matters to which, often, 
local and special considerations must be applied. 

J To lay and collect Taxes, Duties, Imposts and Excises, 
to pay tlie Debts and provide for the common Defence and 
general Welfare of the United States; but all Duties, 
Imposts and Excises shall be uniform throughout the 
United States. 

"Taxes" in the broadest sense of the word, includes 
all regular and constitutional levies made by a govern- 
ment upon the people for the purpose of securing a 
public revenue ; hence, the term would undoubtedly have 
been understood to denote duties, imposts and excises, 
even if they had not been specifically named. 

" The power of taxing the people and their property is 
essential to the very existence of government, and may 
be legitimately exercised on the objects to which it is 
applicable to the utmost extent to which the government 
may choose to carry it. The only security against the 
abuse of its power is found in the structure of the govern- 
ment itself. In imposing a tax the legislature acts upon 
its constituents. This is, in general, a sufficient security 
against erroneous and oppressive taxation." 1 

"The general intent of the Constitution seems plain. 
The general government administered by the Articles of 
Confederation, had been reduced to the verge of impo- 



'Ch. J. Marshall, M'Culloch vs. Maryland, 4 Wheat., 316. 



THE CONSTITUTION. I 85 

tence by the necessity of relying for revenue upon the 
requisitions on the States, and it was a leading object in 
the adoption of the Constitution to relieve the govern- 
ment to be organized under it from this necessity, and to 
confer upon it ample power to provide revenue by taxa- 
tion of persons and property. And nothing is clearer 
from the discussion in the Convention, and the discussions 
which preceded its ratification by the necessary number 
of States, than the purpose to give this power to Congress 
as to the taxation of everything except exports 1 in its 
fullest extent." 2 

As the different State governments also require a regu- 
lar and adequate revenue to meet their respective needs, 
the power to lay and collect taxes is a concurrent one ; 
L e. y may be exercised at the same time by Congress and 
by the State legislatures. 

Beyond the limitations on this power imposed by the 
National Constitution upon Congress and the State legis- 
latures, and upon the latter by the constitutions of their 
respective States, there exist restrictions arising from the 
very nature of our political system. The relations of our 
National and State governments, each being supreme in 
its own sphere of action, hence untrammelled and abso- 
lutely free from outside control in regard to those powers 
entrusted to itself, necessarily imply that neither govern- 
ment shall lay taxes upon the means by which the other 
exercises its constitutional authority. "That the power 
to tax involves the power to destroy ; that the power to 
destroy may defeat and render useless the power to 



1 Article I., Sect. 9, CI. 5. 2 Veazie Bank vs. Fenno, S Wall., $33. 



1 86 OUR SYSTEM OF GOVERNMENT. 

create; that there is a plain repugnance in conferring on 
one government a power to control the constitutional 
measures of another, which other, with respect to those 
very measures, is declared to be supreme over that which 
exerts the control, are propositions not to be denied;" 1 
hence State bonds, bonds of towns, cities, and counties, 
which are but agents and instrumentalities of the State, 
salaries of State officials, and State property are beyond 
the reach of National taxation, as National bonds, the 
salaries of National officers, National fiscal institutions, 
and National property of every kind, are beyond the 
reach of State taxation. But the government whose 
means or agencies would be affected by a tax assessed on 
them by the other, might render such tax lawful by its 
assent, and with such restrictions to prevent unjust dis- 
criminations as it might see fit to impose; e. g., the tax 
assessed upon National bank stock by the State with the 
consent of the United States. 

" Duties and Imposts " are taxes on goods imported, and 
excises are taxes levied on goods produced or manufac- 
tured within the country, or taxes upon certain kinds of 
business or occupations. 

" Duties, Imposts and Excises shall be uniform 
throughout the United States." " Does this term desig- 
nate the whole, or any particular portion of the American 
empire? Certainly this question can admit of but one 
answer. It is the name given to our great republic which 
is composed of States and Territories. The District of 
Columbia, or the territory west of the Missouri, is not 
less within the United States than Maryland or Pennsyl- 
'M'Culloch vs. Md. 



THE CONSTITUTION. I 87 

vania; and it is not less necessary, on the principles of 
our Constitution, that uniformity in the imposition of 
imposts, duties, and excises should be observed in the one 
than in the other. Since, then, the power to lay and col- 
lect taxes, which includes direct taxes, is obviously 
co-extensive with the power to lay and collect duties, 
imposts and excises, and since the latter extends through- 
out the United States, it follows that the power to impose 
direct taxes also extends throughout the United States. 
That the general grant of power to lay and col- 
lect taxes is made in terms which comprehend the District 
and Territories, as well as the States, is, we think, incon- 
trovertible." x The Constitution "declares how direct 
taxes upon the States shall be imposed. They shall be 
apportioned upon the several States according to their 
numbers. If, then, a direct tax be laid at all, it must be 
laid on every State, conformably to the rule provided in 
the Constitution. Congress has clearly no power to 
exempt any State from its due share of the burden. , But 
this regulation is expressly confined to the States, and 
creates no necessity for extending the tax to the District 
or Territories. The words of the ninth section [Art. I., 
Sec. 9, CI. 4,] do not in terms require that the system of 
direct taxation, when resorted to, shall be extended to 
the Territories, as the words of the second section require 
that it shall be extended to all the States. They there- 
fore may, without violence, be understood to give a rule 
when the Territories shall be taxed, without imposing the 
necessity of taxing them." x 

To the objection that the levying of direct taxes on the 

'Loughborough vs. Blake, 5 Wheat., 317. 



1 88 OUR SYSTEM OF GOVERNMENT. 

people of the District of Columbia and in the Territories 
for National purposes is "taxation without representa- 
tion," and hence repugnant to the great principle asserted 
by the Revolution, the Supreme Court in the opinion 
cited from said: "The difference between requiring a 
continent, with an immense population, to submit to be 
taxed by a government having no common interest with 
it, separated from it by a vast ocean, restrained by no 
principle of apportionment, and associated with it by no 
common feelings ; and permitting the representatives of 
the American people, under the restrictions of our Con- 
stitution, to tax a part of the society, which is either in 
a state of infancy advancing to manhood, looking for- 
ward to complete equality as soon as that state of man- 
hood shall be attained, as is the case with the Territories ; 
or which has voluntarily relinquished the right of repre- 
sentation, and has adopted the whole body of Congress 
for its legitimate government, as is the case with the Dis- 
trict, is too obvious not to present itself to the minds of 
all." 

The words, "general Welfare," as here used have been 
the subject of much discussion. In accordance with the 
spirit of the Constitution it seems as if the general wel- 
fare which Congress is to provide for through its power 
of taxation is that which lies within the scope of the 
duties of the National Government as prescribed inde- 
pendently of this clause. To hold that " to provide for 
the .... general welfare " is to be taken in its 
broadest sense, and hence as expressing a grant of a sub- 
stantive power which Congress would not otherwise have 
possessed, would be to destroy the line of demarcation 



THE CONSTITUTION. I 89 

between the Government of the Nation and that of the 
State, which the Constitution everywhere else so carefully 
maintains. 

The National Government has derived its revenue 
mainly from duties and excises ; it has levied direct taxes 
upon real estate by apportionment among the different 
States five times, viz; — in 1798, 1813, 18 14, 181 5, 18 16, 
and 1 86 1, but has never imposed capitation, or poll taxes. 
As but a part of the States paid the proportion of the 
tax assigned to them in 1861, Congress in 1891 passed 
an act to refund to each of these the amount that it then 
paid. The act of 1861 providing for the direct tax also 
imposed a tax of five per cent, on the excess over eight 
hundred dollars of all personal incomes. This income 
tax was maintained at different rates until 1871. In 
1894, it was revived and a tax of one per cent, laid on 
the excess over four thousand dollars of personal 
incomes, but this last act was shortly afterwards declared 
to be unconstitutional by the Supreme Court. 1 

Before the Civil War, the great part of the revenue of 
the United States came from duties on goods imported, 
the amount derived from internal revenue and direct 
taxes being, with the exception of the period from 18 14 
to 1 81 7, comparatively insignificant, while from 1848 to 
1862 there were no receipts whatever from these sources. 
In the latter year an elaborate system to provide an 
"Internal Revenue" was adopted; carriages, watches, 
plate, patent medicines, matches, etc., etc., were made to 
contribute to meet the needs of the Nation, and the 



J See p. 130. 



190 OUR SYSTEM OF GOVERNMENT. 

income from this source soon greatly exceeded that from 
the customs. 

At the present time, the internal revenue is derived 
mainly from excise taxes levied upon alcoholic liquors and 
tobacco. For the year ending June 30, 1893, there was 
derived from customs, in round numbers, $203,000,000, 
from internal revenue, $161,000,000; of the latter, the tax 
on liquors gave $127,000,000, on tobacco, $32,000,000. 

The specific limitations in the Constitution on the tax- 
ing power of Congress and of the States beyond those 
already discussed, will be considered in connection with 
the clauses in which they are made, and the general prin- 
ciples of taxation will be more fully set forth in the study 
of the State Constitution, where they can be more clearly 
explained and illustrated. 

2 To borrow Money on the credit of the United States; 

"The authority to borrow money on the credit of the 
United States, is, in the enumeration of the powers ex- 
pressly granted by the Constitution, second in place, and 
only second in importance, to the power to lay and col- 
lect taxes. Both are given as a means to the exercise of 
the functions of government; and both, if neither had 
been expressly conferred, would be necessarily implied 
from the other powers. For no one will assert that with- 
out them, the great powers, mentioning no others, to 
raise and support armies, to provide and maintain a navy, 
and to carry on a war, could be exercised with adequate 
efficiency." 1 



] Bank vs. Major, 7 Wall., 16. 



THE CONSTITUTION. 191 

Congress has usually exercised the power to borrow 
money vested in it by the Constitution by authorizing the 
President or the Secretary of the Treasury to sell bonds. 
These bonds are simply the promises of the United States 
to pay stated sums of money on or after certain dates 
with interest payable at regular intervals. 

As originally reported to the Convention by the com- 
mittee of detail, the clause was "To borrow money and 
emit bills on the credit of the United States." By 
" bills " was meant promises to pay designed to circulate 
as money. During the War of the Revolution, bills of 
this nature, under the name of "continental currency" 
were issued in large quantities by Congress. 

The depreciation and final repudiation of these bills 
brought great evils upon the country, and with the re- 
membrance of this and of the equally disastrous experi- 
ments in the same line by the different colonies fresh in 
their minds, the general feeling of the members of the 
Convention was that then was the proper time "to shut 
the door against paper money." Hence, while there was 
no opposition to granting to Congress the power " to bor- 
row money on the credit of the United States," the pro- 
posal to enable this body "to emit bills" was almost 
unanimously condemned. 

In 1812, to assist in putting the country in readiness 
for the war with Great Britain, Congress authorized the 
issue of five million dollars in treasury notes bearing- 
interest at the rate of 5 2-5 per cent. The President was 
to issue them as he might deem expedient in payment 
for supplies and for debts due by the United States, to 
those who would receive them at par, and the Secretary 



192 OUR SYSTEM OF GOVERNMENT. 

of the Treasury was authorized to borrow upon their 
credit such sums of money as the President should deem 
necessary. These notes were made receivable in pay- 
ment of all duties and taxes levied by the United States 
and in payment for public lands. Issues of a similar 
nature were made during the three following years and 
again at various dates from 1837 to r 862. All of these 
bore interest, and being generally purchased and held as 
investments did not become an essential part of the circu- 
lating medium of the country. The character of legal 
tender was not given by Congress to any of these issues, 
the receiving of the bills by individuals in payment of 
debts being entirely voluntary. 

In 1862, under the terrible pressure of the Civil War, 
Congress authorized the issue of $150,000,000 in United 
States notes bearing no interest and payable on demand. 
The amount authorized by this and subsequent similar 
acts was $450,000,000. To put and maintain these bills 
in circulation, Congress provided that they should be " a 
legal tender in payment of all debts, public and private 
within the United States, except duties on imports, and 
interest on the public debt." 

The former exception was made in order that the 
Government might through its power " to lay and collect 
taxes," secure a part, at least, of the gold and silver 
necessary for the maintenance of its credit and the prose- 
cution of the war ; and the latter, that the value of the 
bonds, which constituted its chief means of borrowing 
money, might not depreciate, and thus their sale be hin- 
dered and the Secretary of the Treasury placed at a great 
disadvantage in disposing of them. The legal tender 



THE CONSTITUTION. 1 93 

character of these notes gave them the nature of a forced 
loan; i. c, people were obliged to take these promises to 
pay instead of the actual money itself in payment of a 
debt and, generally, for services rendered to the govern- 
ment. As a consequence, gold and silver very soon 
disappeared from circulation, and the value of the 
"greenbacks" greatly depreciated, at one time they being 
worth but little more than one third of the real gold and 
silver dollars that the United States by them promised 
to pay. 

When the war closed, the process of contracting the 
circulation of these notes was entered upon ; that is, the 
Government began to redeem the promises it had made 
in behalf of the Nation by making the re-issue of the 
" greenbacks " smaller than the amount of them paid 
through taxation and otherwise into the Treasury. As a 
result, their value steadily appreciated, and increasing 
business depression and hardship to the debtor classes 
necessarily followed. To meet what seemed to be the 
popular demand, Congress, in 1874, passed an act to 
again expand the Government issues to $400,000,000 ; 
this was, fortunately, vetoed by President Grant. In the 
following year, the " Resumption Act" was passed. This 
provided that on and after January 1, 1879, all the 
treasury notes presented for this purpose would be re- 
deemed in gold. This act went into effect at the time 
prescribed, but in the preceding year, (May 31, 1878) 
an act was passed forbidding any further contraction, 
and the amount then in existence, about $346,000,000, 
has since remained as a part of the circulating medium of 
the country. 



194 °U R SYSTEM OF GOVERNMENT. 

Undoubtedly the members of the Convention did not 
intend to grant to Congress the power to emit bills of 
credit ; but as this intention was not incorporated in the 
framework of government that they proposed, and so was 
not passed upon by the people, it has no binding force. 
It is the Constitution as adopted by the people, and not 
the intentions of its framers, that is the organic law of 
the Nation. 

As we have seen, Congress early assumed and has 
frequently exercised the power to authorize the issue of 
treasury notes. The question as to its power to impress 
upon them the character of legal tender, which was first 
raised by the act of February 25, 1862, has been, how- 
ever, the subject of much controversy, and even the 
majority of the Supreme Court of the United States has 
taken at different times opposite views in regard to the 
matter. In the last legal tender case before this tribunal, 
it was declared, that, "Congress as the legislature of a 
sovereign nation, being expressly empowered by the Con- 
stitution ' to lay and collect Taxes, ... to pay the 
Debts and provide for the common Defence and general 
Welfare of the United States,' and ' to borrow Money on 
the credit of the United States,' and ' to coin Money 
and regulate the Value thereof and of foreign Coin,' and 
being clearly authorized, as incidental to the exercise of 
those great powers, to emit bills of credit, to charter 
National banks, and to provide a National currency for 
the whole people, in the form of coin, Treasury notes, 
and National bank bills ; and the power to make the 
notes of the Government a legal tender in payment of 
private debts being one of the powers belonging to 



THE CONSTITUTION. 1 95 

sovereignty in other civilized nations, and not expressly 
withheld from Congress by the Constitution, we are irre- 
sistibly impelled to the conclusion that the impressing 
upon the Treasury notes of the United States the quality 
of being a legal tender in payment of private debts is an 
appropriate means, conducive and plainly adapted to the 
execution of the undoubted powers of Congress, con- 
sistent with the spirit and letter of the Constitution, and, 
therefore, within the meaning of that instrument ' neces- 
sary and proper for carrying into execution the powers 
vested by this Constitution in the Government of the 
United States. 1 '" 2 

In 1 79 1, after the assumption by the United States of 
the obligations incurred by the different States in carrying 
on the War of the Revolution, the total debt of the 
Nation was $75,463,000. In 1835, the country was 
entirely out of debt, and on January 1, 1861, the whole 
debt of the Union amounted to but $66,243,721 . During 
the next six months it increased at the rate of about four 
millions a month, being, on the first day of July, 1861, 
$90,580,873. During the next year it increased at the 
rate of more than thirty-six millions per month, and at 
the close of the fiscal year ending June 30, 1862, it had 
reached $524,176,412. At the end of the succeeding 
year it was considerably more than twice that amount, 
being on July 1, 1863, $1,1 19,772,1 38. During the fol- 
lowing year it increased nearly seven hundred millions, 
reaching on July 1, 1864, the sum of $1,815,784,370. 
During the next nine months, to the close of the war, 



'See CI. 18 of this Section. 2 Legal Tender Case, no U. S.. 421 



196 OUR SYSTEM OF GOVERNMENT. 

April i, 1865, the debt increased at the rate of about two 
millions a day, and for the next five months thereafter, at 
the rate of about three millions a day, reaching its 
maximum on August 31, 1865, at which date it amounted 
to $2,845,907,626. 

3 To regulate Commerce with foreign Nations, and among 
the several States, and with the Indian Tribes; 

The question of uniformity and harmony of trade rela- 
tions, both among the different States and with foreign 
nations, was, as we have seen, 1 the cause of the first direct 
step taken towards the establishment of our present form 
of Government. 

"The oppressed and degraded state of commerce previ- 
ous to the adoption of the Constitution can scarcely be 
forgotten. It was regulated by foreign nations with the 
single view to their own interests ; and our disunited 
efforts to counteract their restrictions were rendered im- 
potent by want of combination. Congress, indeed, pos- 
sessed the power of making treaties ; but the inability of 
the federal government to enforce them had become so 
apparent as to render that power in a great degree 
useless. Those who felt the injury arising from this state 
of things, and those who were capable of estimating the 
influence of commerce on the prosperity of nations, per- 
ceived the necessity of giving the control over this im- 
portant subject to a single government. It may be 
doubted whether any of the evils proceeding from the 



J Page 107. 



THE CONSTITUTION. 1 97 

feebleness of the federal government contributed more to 
that great revolution which introduced the present system 
than the deep and general conviction that commerce 
ought to be regulated by Congress. It is not, therefore, 
a matter of surprise that the grant should be as extensive 
as the mischief, and should comprehend all foreign com- 
merce, and all commerce among the States." l 

The word "Commerce" in this clause is not limited 
simply to the buying and selling and exchange of goods ; 
it comprehends all the means by which these things are 
effected and to whatever may be employed as a medium 
of commercial intercourse between the States or with 
other nations, and hence to interstate and international 
intercourse generally, whether it relates to persons or 
commodities. It is equally beyond the power of a single 
State to levy anything in the nature of a tax on persons 
entering its limits, or in any way to deny to them free 
ingress or regress, and to regulate the importation or 
exportation of goods. 

Rivers and bodies of water which are directly accessible 
from the ocean, or which are navigable between the 
different States, are, so far as matters of commerce are 
concerned, under the control of Congress, as are railroads 
and telegraphs and other means of communication and 
transportation with a foreign nation or between the 
States. This control over the waters to which it extends 
is held to apply to the inspection of steamers and the 
licensing of their officers, even though these steamers do 
not pass beyond the limits of a single State. 



'Brown vs. Md., 12 Wheat., 419. 



198 OUR SYSTEM OF GOVERNMENT. 

" But in regulating commerce with foreign nations, the 
power of Congress does not stop at the jurisdictional lines 
of the several States. It would be a very useless power, 
if it could not pass those lines. The commerce of the 
United States with foreign nations is that of the whole 
United States. Every district has a right to participate 
in it. The deep streams which penetrate our country in 
every direction pass through the interior of almost every 
State in the Union, and furnish the means of exercising 
this right. If Congress has the power to regulate it, that 
power must be exercised wherever the subject exists. If 
it exists within the States, if a foreign voyage may com- 
mence or terminate at a port within a State, then the 
power of Congress may be exercised within a State. 

This principle is, if possible, still more clear, when 
applied to commerce ' among the several States.' They 
either join each other, in which case they are separated 
by a mathematical line, or they are remote from each 
other, in which case other States lie between them. 
What is commerce ' among' them? and how is it to be 
conducted? Can a trading expedition between two 
adjoining States commence or terminate outside of each? 
And if the trading intercourse be between two States 
remote from each other, must it not commence in one, 
terminate in the other, and, probably, pass through a 
third? Commerce among the States must, of necessity, 
be commerce with the States. . . . The power of 
Congress, then, whatever it may be, must be exercised 
within the territorial jurisdiction of the several States. 

Comprehensive as the word among is, it may very 
properly be restricted to that commerce which concerns 



THE CONSTITUTION. 1 99 

more States than one. The phrase is not one which 
would probably have been selected to indicate the com- 
pletely interior traffic of a State, because it is not an apt 
phrase for that purpose ; and the enumeration of the 
particular classes of commerce to which the power was 
to be extended would not have been made, had the inten- 
tion been to extend the power to every description. The 
enumeration presupposes something not enumerated ; and 
that something, if we regard the language or the subject 
of the sentence, must be the exclusively internal com- 
merce of a State. The genius and character of the 
whole government seems to be, that its action is to be 
applied to all the external concerns of the nation, and to 
those internal concerns which affect the States generally ; 
and not to those which are completely within a particular 
State, which do not affect other States and with which it 
is not necessary to interfere for the purpose of executing 
some of the general powers of the government. The 
completely internal commerce of a State, then, may be 
considered as reserved for the State itself." ' 

"Where the subject upon which Congress can act 
under its commercial power is local in its nature or 
sphere of operation, such as harbor pilotage, the im- 
provement of the harbors, the establishment of beacons 
and buoys to guide vessels in and out of port, the con- 
struction of bridges over navigable rivers, the erection of 
wharves, piers, and docks, and the like, which can prop- 
erly be regulated only by special provisions adapted to 
their localities, the State can act until Congress interferes 



'Gibbons vs. Ogden, 9 Wbeat. 



200 OUR SYSTEM OF GOVERNMENT. 

and supersedes its authority ; but where the subject is 
national in its character, and admits or requires uniformity 
of regulation affecting alike all the States, such as trans- 
portation between the States, including importation of 
goods from one State into another, Congress can alone 
act upon it and provide the needed regulations. The 
absence of any law upon the subject is equivalent to the 
declaration that commerce in that matter shall be free." 1 
In an early case involving the right of a State to com- 
pel the importer of foreign commodities to take out a 
license before selling the bales or packages imported, the 
Supreme Court, after premising that a new condition was 
created by the breaking of the original bale or package, 
or by otherwise intermingling the goods with the general 
property of the State, which would then have the power 
of regulating their sale, declared: "If this power [of 
Congress] reaches the interior of a State, and may be 
there exercised, it must be capable of authorizing the 
sale of those articles which it introduces. It is incon- 
ceivable that the power to authorize this traffic, when 
given in the most comprehensive terms, with the intent 
that its efficacy should be complete, should cease at the 
point when its continuance is indispensable to its value. 
To what purpose would the power to allow importation 
be given, unaccompanied with the power to authorize a 
sale of the thing imported? Sale is the object of importa- 
tion, and is' an essential ingredient of that intercourse of 
which importation constitutes a part. It is as essential 
an ingredient, as indispensable to the existence of the 

'Bowman vs. Railway Co., 125 U. S., 507. 



THE CONSTITUTION. 201 

entire thing, then, as importation itself. It must be con- 
sidered as a component part of the power to regulate 
commerce. Congress has not only a right to authorize 
importation, but to authorize the importer to sell. 
We think that if the power to authorize a sale exists in 
Congress, the conclusion, that the right to sell is con- 
nected with the law permitting importation, as an insepar- 
able incident, is inevitable. If the principles we have 
stated be correct, the result to which they conduct us 
cannot be mistaken. Any penalty inflicted on the im- 
porter for selling the article, in his character of importer, 
must be in opposition to the act of Congress which 
authorizes importation. Any charge on the introduction 
and incorporation of the articles into and with the mass 
of property in the country must be hostile to the power 
given to Congress to regulate commerce ; since an essen- 
tial part of that regulation, and the principal object of it, 
is to prescribe the regular means for accomplishing that 
introduction and incorporation." : 

Following this same line of reasoning, the Supreme 
Court in a recent case 2 denied to the different States the 
power of restricting or prohibiting the sale in the original 
package of intoxicating liquors imported into a State 
from a foreign country or from other States. Immedi- 
ately after this decision was rendered, however, Congress 
passed an act placing the control of such liquors within 
the police powers of the different States, and on the same 
footing as if they had not been imported. In a subse- 
quent case the constitutionality of this statute which 



'Brown vs. Md., 12 Wheat., 419. 
2 Leisy vs. Harding, 135, U. S., 100. 



202 OUR SYSTEM OF GOVERNMENT. 

places the whole regulation of the liquor traffic in the 
hands of the different States was affirmed. 1 By " police 
powers " are denoted all those general laws of internal 
regulation necessary to secure the peace, good order, 
health and comfort of society. Whenever the exercise 
of these powers by the individual States encroaches in 
any way upon the domain of National legislation, the 
State regulations must yield. The line of demarcation 
between that which is a substantial interference with the 
power of Congress over commerce and that which is a 
mere police regulation is exceedingly vague, and the 
courts have refused to lay down any rule in the matter, 
preferring to decide each case according to its own cir- 
cumstances. Among the many apparent interferences 
with the power of Congress that have been held to be 
police regulations, and thus within the power of the States, 
are the regulation of the grades and crossings of rail- 
roads, quarantine laws, compulsory pilotage laws, harbor 
police, the regulations as to the stationing of ships in the 
various large seaports, the excluding of animals suspected 
of contagious disease from the limits of the States, etc. 

When, however, a State passes beyond what can be 
fairly construed as a regulation for the protection of the 
lives and property of its citizens, or for the convenience 
of commerce, and attempts to regulate commerce 
between itself and other States or foreign nations, its 
regulations are to this extent void as being an exercise of 
the power exclusively granted to Congress. Also 
wherever the exercise of police power by the States, 



J In re Rahrer, 140, U. S., 545. 



THE CONSTITUTION. 203 

whatever the end to be attained, affects in any way inter- 
state or international commerce, it is subordinate to the 
measures that Congress may pass upon the same subject, 
and if there is conflict between them, the State regulations 
must give way. 

The power given to Congress by this clause is 
complete, and may be exercised to any extent that this 
body may see fit, even to the temporary destruction of 
commerce, as was done by the embargo act of 1807 
which forbade all ships and vessels within the jurisdiction 
of the United States from leaving for any foreign port 
except under the immediate direction of the President, 
by the non-intercourse acts of 1809, and again by similar 
measures in 1812 and 181 3. 

In 1887, Congress passed an act for the regulation of 
interstate and international commerce, in so far as directly 
effected in whole or in part by railroads. Among the 
chief abuses sought to be remedied by this law, are 
unreasonable rates for transportation of goods or passen- 
gers, discrimination between shippers, and the preventing 
of competition by the pooling of freights and the sharing 
of earnings. The same act establishes a commission of 
five members charged with the duty of investigating all 
alleged violations of the law. As this " Interstate Com- 
merce Commission," however, is not a judicial tribunal, its 
report or decision in any particular case can be enforced 
only by a suit brought against the offending railroad or 
railroads in the courts of the United States. 

By an act passed in 1888, all companies operating- 
telegraph lines which had been constructed to any extent 
with government aid were placed under the supervision 



204 OUR SYSTEM OF GOVERNMENT. 

of this commission as to certain matters pertaining to 
interstate and international intercourse. 

Over rivers and lakes that are cut off from the open 
sea, or from direct water communication with other States 
or nations by some barrier to navigation, and over rail- 
roads and other means of communication confined wholly 
within its own limits, each State has final control, except 
in so far as they may serve as a means of a commerce 
that extends beyond its limits. Also, in all matters per- 
taining to the business that is carried on within its own 
boundaries the control of the State is exclusive, and Con- 
gress has no power to interfere in any way other than by 
its general power of taxation. In delivering its opinion 
as to whether the so-called licenses issued by the United 
States to dealers in intoxicating liquors gave to them any 
permission or authority to carry on this traffic, the Su- 
preme Court said : — " Congress having power 1 to regulate 
commerce with foreign nations, among the several States 
and with the Indian tribes may without doubt, provide 
for granting coasting licenses, licenses to pilots, licenses 
to trade with Indians, and any other licenses necessary or 
proper for the exercise of that great and extensive power. 
All such licenses confer authority and give rights 
to the licensee. But very different considerations apply 
to the internal commerce or domestic trade of the States. 
Over this commerce and trade Congress has no power of 
regulation nor any direct control. This power belongs 
exclusively to the States. No interference by Congress 
with the business of citizens transacted within a State is 



'.License Cases, 5 Wall., 462, 



THE CONSTITUTION. 205 

warranted by the Constitution, except such as is strictly 
incidental to the exercise of powers clearly granted. The 
power to authorize business within a State is plainly 
repugnant to the exclusive power of the State over the 
same subject. If, therefore, the licenses under considera- 
tion must be regarded as giving authority to carry on 
the branches of business they license, it might be difficult, 
if not impossible, to reconcile the granting of them with 
the Constitution. But it is not necessary to regard these 
laws as giving such authority. So far as they relate to 
trade within State limits, they give none, and can give 
none. They simply express the purpose of the govern- 
ment not to interfere by penal proceedings with the trade 
nominally licensed, if the required taxes are paid. The 
power to tax is not questioned, nor the power to impose 
penalties for the non-payment of taxes. The granting of 
a license, therefore, must be regarded as nothing more 
than a mere form of imposing a tax, and of implying 
nothing, except that the licensee shall be subject to no 
penalties under national law, if he pays it." 1 

The necessity of placing in the hands of Congress the 
power to regulate commerce with the Indian tribes, arises 
from their peculiar relation to our Government as wards 
whose interests must be protected, and as political 
organizations with which the National power should alone 
deal. 

"Though the Indians are acknowledged to have an 
unquestionable right to the lands they occupy, until that 
right shall be extinguished by a voluntary cession to our 



license Cases, 5 Wall., 462. 



206 OUR SYSTEM OF GOVERNMENT. 

government, yet it may well be doubted whether those 
tribes which reside within the acknowledged boundaries 
of the United States can, with strict accuracy be de- 
nominated foreign nations. They may, more correctly, 
perhaps, be denominated domestic dependent nations. 
They occupy a territory to which we assert a title inde- 
pendent of their will, which must take effect in point of 
possession when their right of possession ceases. Mean- 
while they are in a state of pupilage. Their relation to 
the United States resembles that of a ward to his 
guardian. . . . They and their country are considered 
by foreign nations, as well as by ourselves, as being so 
completely under the sovereignty and dominion of the 
United States, that any attempt to acquire their lands, or 
to form a political connection with them, would be con- 
sidered by all as an invasion of our territory, and an act 
of hostility." l 

Up to 1 87 1, the United States made treaties with the 
Indian tribes upon the basis of national equality, and in 
this manner regulated many matters of commercial 
intercourse as well as questions pertaining to cessions of 
lands, supplies, education, &c. In that year, however, 
Congress enacted that no Indian nation or tribe within the 
territory of the United States should be recognized as an 
independent power with which the United States might 
contract by treaty. Since this act, no formal treaties with 
these tribes have been made, but agreements and con- 
tracts have been made with them that virtually amount to 
the same thing. 



Cherokee Nation vs. Georgia, 5 Peters, 1. 



THE CONSTITUTION. 207 

This power of Congress is held not to extend to those 
small groups or families of Indians that have for a long 
time lived within the limits of a State by whose laws they 
recognize themselves to be bound, and to which, from 
their close relations with the surrounding people, they 
have necessarily become completely subject. 

*To establish an uniform Rule of Naturalization, and 
uniform Laws on the subject of Bankruptcies throughout 
the United States. 

"To provide an uniform Rule of Naturalization" is to 
provide by general law for the admission of foreigners, or 
aliens, to citizenship. 

The different States may, if they individually see fit, 
give to aliens the privilege of suffrage and even of hold- 
ing office, but they cannot make them citizens of the 
United States, or of the State itself, at least, not within 
the meaning of Section 2 of Article IV., which declares 
that "The Citizens of each State shall be entitled to 
all Privileges and Immunities of Citizens in the several 
States." 

As a result of the feudal doctrine that the lord had an 
indefeasible claim to the services of his vassal, the right 
of a person to renounce allegiance to his native country 
has, until recently, been generally denied in Europe. 
Even in this country for a few years after the adoption of 
the Constitution, it was held by the courts that a citizen 
of the United States could not expatriate himself unless 
authorized to do so by some law. This doctrine, how- 
ever, was soon discarded, and the United States has since 



208 OUR SYSTEM OF GOVERNMENT. 

strenuously maintained as a principle equally applicable 
to all nations, that the subject of any power has a natural 
right to transfer his allegiance to another. The impress- 
ment of naturalized American sailors of English birth 
into the British naval service conformably with the as- 
sumption that " once an Englishman is always an Eng- 
lishman," was one of the principal causes of the War of 
1812. After the close of this war, Great Britain, though 
she did not formally yield her position in this respect by 
the treaty of peace, did not again reassert it, and the 
principle for which the United States contended was in 
the course of time tacitly recognized by other European 
powers. 

In 1868, Congress declared that " the right of expatria- 
tion is a natural and inherent right of all people, indis- 
pensable to the enjoyment of life, liberty and the pursuit 
of happiness." The same year, treaties were made with 
several nations by which this principle was definitely 
recognized ; and at present, Russia is the only nation of 
importance that adheres to the old doctrine that the 
allegiance of its citizens is indefeasible. 

By the laws of the United States, an alien to become 
naturalized must, at least two years prior to his being 
admitted to citizenship, declare on oath before a circuit or 
district court of the United States, or a district or 
supreme court of a Territory, or a court of record of a 
State, having common law jurisdiction and a seal and 
clerk, that it is his intention to become a citizen of the 
United States and to renounce forever all allegiance to any 
foreign power or sovereign, and particularly the one of 
which he is at the time a subject. 



THE CONSTITUTION. 200, 

When the alien applies for admission, he must declare 
on oath before one of the courts above specified that he 
will support the Constitution of the United States, and 
that he renounces and abjures allegiance to any other 
power, in the same manner as in his declaration of inten- 
tion. At this time he must prove to the court that he 
has resided five years in the United States, and at least a 
year in the State or Territory where the court is held ; he 
must also give satisfactory evidence that he is of a good 
moral character, and loyal to the principles of our 
Government. 

If the applicant has borne any hereditary title of 
nobility, he must at the same time make express renunci- 
ation of this. 

An alien of the age of twenty-one years and upwards 
who has served in the army of the United States and 
received an honorable discharge therefrom, may be nat- 
uralized without previous declaration of intention, if he 
can show that he has resided in the United States for at 
least one year antecedent to his application. Every sea- 
man who makes declaration of intention and subsequently 
serves three years on an American merchant vessel, may 
be admitted to citizenship on presentation before a proper 
court of a certificate of his discharge from service and of 
good conduct, together with a certificate of his declaration 
of intention. 

An alien who has. resided in this country for three 
years prior to becoming twenty-one years of age, and 
after he has resided here five years, including the three 
years of his minority, may be admitted without the 
declaration of intention having been made. 



2IO OUR SYSTEM OF GOVERNMENT. 

When parents are naturalized, the minor children, if 
they reside in this country, become by this fact citizens ; 
and the widow and children of a person who has made 
declaration of intention may be admitted on taking the 
oath of allegiance. 

The privilege of naturalization is restricted to white 
aliens and those of African nativity or descent. A differ- 
ence of opinion having arisen as to whether the Chinese 
were comprehended in the former class, a law was passed 
in 1882 declaring that they should not be admitted to 
citizenship. 

A naturalized citizen is entitled to the same protection 
in his rights and liberties that is accorded to the native- 
born ; but his naturalization is not retroactive, and if 
before leaving the country of his birth there was military 
or other service due from him to his government, or if he 
had committed any offense against its laws, he is liable to 
be punished for this should he return, and the United 
States cannot interfere to protect him from this punish- 
ment, however unjust it may appear. 

When new territory is acquired, its citizens become by 
the annexation at once citizens of the United States. 

To exercise fully the power "to establish uniform laws 
on the subject of bankruptcies " is to provide a general 
system for the distribution of the property of an insolvent 
debtor among his creditors and for the discharge of the 
debtor from his legal liabilities and contracts then ex- 
isting. 

The vesting of this power in Congress does not deny 
the possession of a similar power on the part of the 
individual States ; but the State bankrupt, or, as they are 



THE CONSTITUTION. 211 

usually termed, insolvent laws are suspended in their 
action so long as there is a National law in existence ; 
on the repeal of the latter, however, the State law 
immediately revives. 

In the year 1800, the first National bankrupt law was 
enacted by Congress ; this was repealed after having 
been in force three years. In 1841, another act of a 
similar nature was passed ; this was repealed in 1843. I n 
1867, Congress again enacted a bankrupt law; this re- 
mained in force until 1878. Since then several bills to 
establish a new system of bankrupt laws have been intro- 
duced into the National legislature, but none have as yet 
become law, and the whole matter remains where it has 
been during the greater part of the time since the adop- 
tion of the Constitution, — in the hands of the different 
States. 

A National bankrupt law may be framed to affect ob- 
ligations and contracts already existing, but the insolvent 
laws of a State are subject to the constitutional prohibi- 
tion that " no State shall pass any law impairing the ob- 
ligation of contracts." l Hence, no State can pass a law 
which will release a person from debts already incurred, 
or which will in any way invalidate the binding force of 
contracts previously made, as, for instance, by rendering 
the conditions of the discharge of the debtor less strin- 
gent than they were when his obligations were entered 
upon. 

On the other hand, if the insolvent laws are so amend- 
ed as to increase the obligation of the contract, as to give 



'Art. I., Sect. 10, CI. 1. 



212 OUR SYSTEM OF GOVERNMENT. 

to the creditor greater power over the debtor, the con- 
stitutional prohibition does not apply, and the new 
provisions may affect previous as well as subsequent 
contracts. 

As the laws of a State have no binding validity beyond 
its own boundaries, they cannot discharge one of its citi- 
zens from his legal obligations to a citizen of another 
State ; if, however, the creditor in such a case should 
make himself a party to the insolvency proceedings in 
the debtor's State, he cannot afterwards claim that his 
debt was protected by the Constitution. 

$To coin Money, regulate the Value thereof, and of 
foreign Coins, and fix the Standard of Weights and 
Measures. 

" To coin Money " is to stamp pieces of metal for use 
as a standard of value and as a means of facilitating the 
exchange of goods and of property generally. This power 
is expressly made exclusive in Congress, and the metal to 
be used for monetary purposes is indicated by the consti- 
tutional provision that " No State shall .... coin 
money," or "make anything but gold and silver a legal 
tender in payment of debts." l 

The propriety of vesting this power exclusively in the 
National legislature is apparent. Were it to be exercised 
by the individual States, the various and probably varying 
monetary systems would result in such confusion as to 
constitute a serious obstacle to commerce between the 



'Article I., Sect. 10, CI. i. 



THE CONSTITUTION. 213 

different sections of the country, and, in fact, would nega- 
tive the possibility of anything like its present develop- 
ment. To " regulate the value thereof" means to deter- 
mine the weight and degree of fineness of the different 
coins ; this undoubtedly would be understood as included 
in the power to coin money, had it not been specifically 
expressed. The value of money, in the sense of its ratio 
in exchange, or purchasing capacity, is entirely beyond 
the power of Congress to regulate. 

To regulate the value of foreign coins is to declare the 
ratio which they shall bear to domestic coins as legal 
tender when that quality is given to them. This was 
done by several acts of Congress from 1793 to 1857; in 
the latter year, however, the quality of legal tender was 
restricted to coins struck at our own mints. By the Arti- 
cles of Confederation the power to coin money was 
possessed by both the Nation and the individual States, 
but with the exclusive right in Congress of regulating the 
alloy and value of the coins struck by either authority. 
By neither, however, was this power exercised, and the 
circulating medium of the country prior to the adoption 
of the Constitution consisted chiefly of foreign coin, the 
practical monetary unit being the Spanish milled dollar. 

The National mint was established by act of Congress 
April 2, 1792, and at the same time our present decimal 
monetary system was adopted. The same act also pro- 
vided for the coinage of gold, silver, and copper coins. 
All gold and silver pieces of full weight were declared to 
be legal tender ; every creditor being legally obliged to 
receive them for debts due him, unless payment in some- 
thing else was specifically agreed upon. 



214 OUR SYSTEM OF GOVERNMENT. 

The coinage value of silver to gold was fixed at one to 
fifteen ; this being at that time the relative commercial 
value of the two metals; i. e., one ounce of gold was 
worth fifteen ounces of silver. In the gold coins there 
were to be 24.75 grains of pure gold, and in the silver 
coins 371.25 grains of pure silver, to the dollar. Any 
individual could present either metal and have it coined 
without charge. 

The coinage ratio of 1 to 15 was maintained until 1834, 
when, in consequence of the increase in the market price 
of gold as compared with that of silver, the amount of 
gold to be coined for a dollar was reduced to 23.20 grains, 
thus establishing the ratio of 1 to 16.002. Three years 
later to make the coin 90 per cent, fine while having the 
same gross weight, the amount of pure gold to the dollar 
was increased to 23.22 grains, thus establishing the ratio 
of 1 to 15.988. By the same act a like degree of fineness 
was established for the silver coins, by providing for a 
reduction of the alloy that they contained, the weight of 
the silver dollar being thereby reduced from 416 to 412.5 
grains. 

About the time the first change in the coinage ratio was 
made, the previous tendency of gold to rise in value as 
compared with silver, or of silver to fall in value as com- 
pared with gold, was reversed, and the value of silver 
relative to gold began to increase. This tendency was 
greatly strengthened by the discovery of gold in California 
and Australia, and in 1853 the silver dollar had become 
so much more valuable than the gold dollar, that it ceased 
to be used as money. Congress, then, in order to keep 
the minor silver coins in circulation reduced their weight 



THE CONSTITUTION. 21 5 

by about 8 1-2 per cent.; at the same time, their legal 
tender capacity was limited to five dollars, and the right 
of having them coined withdrawn from private indi- 
viduals. 

In 1862, in consequence of the Civil War and the issue 
of legal tender treasury notes, and their depreciation in 
value, 1 both gold and silver coins disappeared from circu- 
lation and did not reappear until 1879 when the National 
Government stood ready to redeem the " greenbacks " 
in coin. 

In 1873, the further coinage of the standard silver 
dollar was discontinued, but the coinage of a silver " trade 
dollar " of 420 grains nine tenths fine, with a legal tender 
capacity of five dollars was authorized. These " trade dol- 
lars " were intended for export to different parts of Asia 
where silver was preferred to gold, rather than for circula- 
tion in this country. The legal tender quality of these 
coins was discontinued in 1876, and in 1887 the coinage 
of them was stopped. 

In 1878, a bill was passed over the veto of President 
Hayes which provided for a monthly purchase of not less 
than two million nor more than four million dollars 
worth of silver, and its coinage into silver dollars of the 
weight and fineness prescribed in the act of 1837, ^ ie 
coinage ratio of 1 to 15.988 being thus re-established. 

In July, 1890, in order to increase the demand for 
silver and thus to check the tendency of this metal to fall 
in price, a law was enacted which directed the Secretary 
of the Treasury to purchase four million five hundred 



'See p. 193. 



2l6 OUR SYSTEM OF GOVERNMENT. 

thousand ounces of silver each month, or so much 
thereof as might be offered at a price not exceeding one 
dollar for 371.25 grains of fine silver, and to pay for 
it with treasury notes issued for this purpose. The Sec- 
retary of the Treasury was also directed to coin each 
month two million standard silver dollars until July 1, 
1891, and after that, as many as might be necessary to 
redeem the treasury notes provided for in the act. In 
November, 1893, at a special session of Congress called 
to consider the matter, the purchase clause of the act of 
July, 1890, was repealed, the fluctuating price of silver 
making it clear that it was impossible by this means to 
effect the results desired, and that the continued purchase 
of such enormous quantities of it would bring great 
financial disaster upon the country. 

By different acts of Congress, the last in 1876, the 
metric system of weights and measures have been legal- 
ized in this country, and metric standards, as well as stan- 
dards for the system of weights and measures in common 
use have been supplied to the different States. The dif- 
ficulties in the way of the effective exercise by Congress 
of the power to establish the standards of weights and 
measures have been so many that it has wisely been left 
to the different States, which have of their own accord 
established uniformity through the adoption by each of 
the standards furnished by the United States. 

6 To provide for the Punishment of counterfeiting the 
Securities and current Coin of the United States. 

This power Congress would possess as a natural result 



THE CONSTITUTION. 217 

of the powers "to coin money," and "to borrow money 
on the credit of the United States," even if it had not 
been specifically expressed. 

Congress has provided punishment for the making, 
uttering, passing, or importing of spurious coins and gold 
and silver bars in similitude of those coined or stamped 
at the mints of the United States, or of foreign coin pass- 
ing current in this country. A lesser penalty is also 
affixed to the offense of mutilating or in any way decreas- 
ing the bullion value of these coins, if they are of gold 
or silver. 

Counterfeiting coin is the making of spurious coin 
resembling the genuine. The coining of money is an act 
of sovereignty ; hence, even if the coins made by unau- 
thorized persons are of the same material and same fine- 
ness as those stamped at the mint, they are counterfeit, 
and the makers of them liable to punishment. 

To change by any act of manipulation minor coins so 
that they will have the appearance of more valuable coins 
is also an indictable offense, and the party so doing will 
not be allowed to excuse himself on the ground that he 
did not do this for fraudulent purposes. 

In order to be a counterfeit, the coin, or piece of metal 
must bear such a resemblance to a genuine coin as to 
deceive an ordinarily careful person ; if, however, it pur- 
ports to be a coin of the United States, it is a counterfeit, 
for it may then deceive, even if it is similar to no coin 
actually minted. 

Congress has also declared criminal the counterfeiting 
of National bonds, treasury notes, gold and silver certifi- 
cates, National bank notes, and the various other securi- 



2l8 OUR SYSTEM OF GOVERNMENT. 

ties and forms of obligations of the United States, and 
provided suitable penalties for such offenses. The gen- 
eral provisions relating to the counterfeited forms of these 
securities are similar to those that apply to counterfeit 
coin. In the matter of similitude it has even been held 
that " It is indictable under the statutes to make minature 
photographs of United States treasury notes, although 
such photographs may not be calculated to deceive the 
public." l 

In 1884, an act was passed to punish the counterfeiting 
within the United States of the securities of foreign gov- 
ernments. The authority for the exercise of this power 
is to be found in those clauses that provide that Congress 
shall have power " to regulate commerce with foreign 
nations" and "to define and punish .... offenses 
against the law of nations " rather than in the clause 
under consideration. 

The counterfeiting of the current coin and securities 
of the United States is directly an offense against the 
National Government, as tending to obstruct it in the 
exercise of the powers vested in it by the Constitution. 
If the uttering and passing of counterfeit' coin or securi- 
ties of the United States were solely of the nature of 
cheating or of fraud between individuals, it would be a 
question whether Congress could punish these offenses ; 
but as all such acts tend to discredit the genuine coin and 
securities and hence to decrease their value and interfere 
with their free circulation, the power of the National 
legislature to deal fully and effectively with the matter 
exists by necessary implication. 

'Eng. and Am. Enc. of Law, Vol. 4, p. 336, Note. 



THE CONSTITUTION. 219 

The power given to Congress by this clause, is not 
exclusive. The different States may punish acts of this 
nature that are also declared to be crimes by the United 
States. The power of the individual States in this 
respect arises not because the acts of counterfeiting, utter- 
ing, and passing spurious coin or securities are offenses 
against the United States, with that question they have 
nothing to do, but because these acts are a means of 
cheating and defrauding among their own citizens. The 
one wrongful act constitutes two offenses, one against the 
United States, the other against the individual State 
within whose borders it is perpetrated. 

7 To establish Post Offices and post Roads. 

This clause gives to Congress the control of a business 
which so intimately affects all the people that it would be 
impolitic to leave it in the hands of private parties ; and in 
which the need of a single and harmonious system is so 
great, that it would be equally unwise to leave it to be 
controlled or regulated by the individual States. As early 
as 1 7 10, a Postmaster-General was appointed by the 
Crown for the colonies ; this functionary was authorized 
" to keep his chief letter office in New York and other 
chief offices at some convenient place or places in other 
of his Majesty's provinces or colonies in America." The 
importance of the service at this time was comparatively 
slight, and the transmission of the mail slow, six weeks 
being the ordinary time required to send a letter from 
Philadelphia to Boston and receive a reply. 

In 1753, Benjamin Franklin, who sixteen years before 



220 OUR SYSTEM OF GOVERNMENT. 

had been appointed postmaster of Philadelphia, was made 
Postmaster-General of America. This position he held 
until 1 774 when he was removed on account of his active 
support of the colonial cause. In the following year, 
however, he was placed at the head of the post-office 
department organized by the Continental Congress. The 
Articles of Confederation gave to Congress the power of 
" establishing and regulating post offices from one State 
to another throughout all the United States, and exacting 
such postage on the papers passing through the same, as 
may be requisite to defray the expenses of the said 
office." The organization established in 1782 by Con- 
gress in accordance with this provision was maintained 
until after the adoption of the Constitution. In 1792, the 
rates previously adopted were revised ; six cents was now 
charged for distances of not over thirty miles, and from 
this distance to four hundred and fifty miles and over, the 
rates varied from this amount to twenty-five cents. The 
postage on double letters, i. e., letters of two sheets, being 
twice as much as that on single letters. 

In 1845, a reduction in the rates was made; for the 
transmission of letters for less than three hundred miles 
the charge was made five cents, for a greater distance, ten 
cents ; at this time the distinction between a double and 
single letter was abolished, and it was provided that if the 
letter weighed a half an ounce or less, it should be con- 
sidered a single letter. In 1851, the postal rates were 
again modified ; after this, several other changes in the 
direction of simplicity and cheapness were made from 
time to time until 1863, when an uniform rate of three 
cents was established for letters to every part of the 



THE CONSTITUTION. 22 1 

country. This was reduced in 1885 to two cents for let- 
ters weighing an ounce or less. 

The annual expenditures of the Post-Office Department 
have in recent years, with a few exceptions, exceeded its 
receipts. This is caused mainly by the fact that the cost 
of the handling and carriage of newspapers and periodi- 
cals, generally speaking, greatly exceeds the postage paid 
on them ; but the advantage to the public arising from a 
cheap and easy dissemination of general and political 
information more than counterbalances any pecuniary loss 
that may arise from this source. 

Whether Congress in accordance with the Constitution 
can construct and maintain highways under the power to 
establish post-roads, or whether it is limited to designat- 
ing the roads over which the mail is to be carried, has 
been a subject of much discussion. Congress itself has 
acted upon the broader construction of this clause. In 
1806, acts were passed for the building and maintenance 
of three post routes of which the most important was the 
Cumberland road, extending from a point on the Potomac 
river to the State of Ohio. 

The large grants of land made at various times to assist 
in the construction of railroads also find their constitu- 
tional justification in this clause. 

Congress has established as post-roads all the waters of 
the United States, all canals, and all public highways, so 
long as the mail is carried over them, and also all letter 
carrier routes in any village or town. 

8 To promote the Progress of Science and useful Arts, by 



222 OUR SYSTEM OF GOVERNMENT. 

securing for limited Times to Authors and Inventors the 
exclusive Right to their respective Writings and Discoveries. 

From the very nature of literary and artistic produc- 
tions and of inventions, the rights of authors and inven- 
tors would be but inadequately protected if ascertained 
and established by independent legislation in the different 
States. 

In this country, an author, artist, or designer has prop- 
erty rights in his manuscript or in the particular work in 
which his literary or artistic effort has been embodied ; 
but if he publishes this without securing a copyright as 
provided by the laws of the United States, the right of 
reproducing it becomes common, and copies of it may 
be republished and sold by any one who sees fit to do so. 

Copyright, then, is the exclusive right of the author, 
artist, or designer to the printing or otherwise multiplying 
of the copies of his work for the purpose of publishing 
and selling them. 

This clause, so far as copyright is concerned, has been 
liberally construed by Congress and by the courts, and 
made to extend to engravings, photographs, musical com- 
positions, paintings, statuary, etc., as well as to books. 

Under the Articles of Confederation the entire control 
of copyright was in the hands of the different States, but 
recognizing the necessity of uniform legislation on this 
subject, several of them on the advice of Congress estab- 
lished similar regulations and laws. Under this system, 
it was necessary in order to enjoy protection in the differ- 
ent States for the author to secure a copyright in each of 
them. The Constitution provided a means for remedying 



THE CONSTITUTION. 223 

this inconvenience by the clause under consideration. In 
1790, Congress passed the first National copyright law. 
By this, authors who were citizens or residents of the 
United States were enabled to secure copyrights on 
books, maps, and charts for the period of fourteen years, 
at the expiration of which, another term of the same 
duration might be granted to the author if then living. 
In 1 83 1, the original term of the copyright was extended 
to twenty-eight years, with a privilege of renewal for 
fourteen years by the author, his widow, or his children. 

A general law covering the whole subject and repealing 
the various statutes hitherto passed, was enacted in 1870. 
The provisions of the law of 1831 as to the duration 
and renewal of the term were, however, retained. To the 
subjects previously covered by the copyright laws many 
things were added, such as paintings, drawings, photo- 
graphs, statuary, etc. 

Prior to 1891, the benefits of the copyright law were 
confined to citizens and residents of the United States. 
In that year, an act of Congress gave the subjects of any 
foreign power the same protection when that power should 
give to the citizens of the United States the privilege of 
copyright on substantially the same basis as to its own 
citizens. A proviso, however, makes it necessary that the 
works of a foreign author, copyrighted and published in 
this country, shall be printed from type set in the United 
States, or from plates made therefrom. 

To obtain a copyright, a printed copy of the title of 
the book, map, chart, or the like, or a description of the 
painting, drawing or statuary, must be forwarded to the 
librarian of Congress on or before the day of the publica- 



224 OUR SYSTEM OF GOVERNMENT. 

tion of the work ; also, not later than this date, two 
complete copies of the best edition of the book or similar 
work, or in case of a painting, drawing, or statue, a pho- 
tograph of the same must be sent to the same official. 
The fee for the registration of the title or description is 
fifty cents for citizens of the United States and one dollar 
for foreign authors, fifty cents additional being charged 
for a copy of the record. 

No copyright is valid unless notice is given to the 
public by inserting on the title-page or the page following 
in the case of a book, or by printing or in some manner 
inscribing thereon, if the object copyrighted is of a 
different nature, a declaration of the fact that it has been 
secured. For printing or inscribing such a declaration on 
an article not duly copyrighted, the law imposes a fine of 
a hundred dollars. 

Patents are granted to inventors to secure to them for 
a term of years the exclusive control, or monopoly, of 
their respective discoveries or inventions. 

Section 4886 of the Revised Statutes of the United 
States provides : 

"Any person who has invented or discovered any new 
and useful art, manufacture or composition of matter, or 
any new and useful improvement thereof, not known or 
used by others in this country, and not patented .or de- 
scribed in any printed publication in this or any foreign 
country before his invention or discovery thereof, and not 
in public use or on sale for more than two years prior to 
his application, unless the same is proved to have been 
abandoned, may, upon payment of the fee required by 
law, and other due proceedings had, obtain a patent 
therefor." 



THE CONSTITUTION. 225 

The following section also provides that no person 
shall be debarred from obtaining a patent for an inven- 
tion or discovery because the same has been previously 
patented in a foreign country, unless it has been in com- 
mon use in the United States for at least two years prior 
to the time of making the application. When, however, 
a patent is granted in such a case, it expires at the time 
of the expiration of the foreign patent, but in no case 
remains in force for more than seventeen years, the term 
for which a patent is granted under our laws. 

When application is made for a patent, a drawing of 
the object or mechanism and, if the Commissioner should 
desire it, a model of the same must be forwarded to the 
Patent Office ; in case of a composition, a sample must 
be forwarded for examination. 

The fees are fifteen dollars on making the application, 
twenty dollars on issuing the patent, and fifty dollars on 
the granting of an extension. Extensions can be secured, 
however, only by special act of Congress. 

To secure against unintentional infringement, the objects 
covered by a patent must have clearly marked upon them 
the word " patented " or other words to the same effect, 
together with the day of the month and the year when 
the patent was granted. Failing to take this precaution, 
the patentee cannot collect damages from one who has 
infringed upon his rights, unless he can prove that he has 
otherwise given the offender due notice of the fact that 
he holds a patent on the article in question. The law 
also provides a penalty for the making of a false declara- 
tion or representation to the effect that an article has 
been patented, when, in fact, it has not. 

15 



226 OUR SYSTEM OF GOVERNMENT. 

In case a person is at work upon an invention and fears 
that someone else, knowing what he has already accom- 
plished, may attempt to forestall him in securing a patent, 
he may on payment of a fee of ten dollars file in the 
Patent Office a caveat setting forth the object and char- 
acteristics of his invention, and asking for the protection 
of his rights until he shall have had time to mature it. 
This caveat is preserved in the secret archives of the 
office and is operative for the term of one year; it may, 
however, be renewed. 

"There can be no patent for a mere principle. The 
discoverer of a natural force or a scientific fact cannot 
have a patent for that. But if he invents for the first 
time a process by which a certain effect of one of the 
forces of nature is made useful to mankind, and fully 
describes and claims that process, and also describes a 
mode or apparatus by which it may usefully be applied, 
he is within the meaning and very words of the patent laws 
' a person who has invented or discovered any new and 
useful art;' and he is entitled to a patent for the process of 
which he is the first inventor, and is not restricted to the 
particular form of mechanism or apparatus by which he 
carries out that process. Another person, who afterwards 
invents an improved form of apparatus, embodying the 
same process, may indeed obtain a patent for his improve- 
ment, but he has no right to use the process, in his own 
or any other form of apparatus without the consent of 
the first inventor of the process." x 

In 1870, Congress passed a general trade-mark law; 



telephone Co. vs. Dolbear, Fed. Rep., Vol. XV., p. 449. 



THE CONSTITUTION. 227 

this purported to secure to individuals and corporations 
complying with its provisions, the exclusive use of cer- 
tain words or symbols as distinguishing marks of the 
goods they respectively manufactured. In 1879, this act 
was set aside by the Supreme Court of the United States 
on the ground that no authority in this respect is given 
to Congress by the Constitution, "the instrument which 
is the source of all the powers that Congress can lawfully 
exercise." In no sense could a trade-mark be included 
in the writings of authors or the discoveries of inventors, 
it requiring neither originality nor novelty, but simply 
priority of use. 

Shortly after the rendering of this decision the legisla- 
tures of the different States enacted laws on this subject 
for their own jurisdictions, and in 1881, Congress, acting 
under the power given by the third clause of the present 
Article, passed an act for the registration of trade-marks, 
limiting its application, however, to commerce with foreign 
nations and with the Indian tribes. 

9 To constitute Tribunals inferior to the supreme Court. 

In another part of this work we shall see that the 
Constitution itself provides for the establishment of a 
Supreme Court of the United States, and thus places the 
Judiciary on a Constitutional equality with the other two 
great departments of our Government. 

It is obvious, however, that it would be impossible for 
the Constitution to provide for the number or the nature 
of the inferior courts ; these matters must depend on the 
varying needs of the country as it increases in wealth and 



228 OUR SYSTEM OF GOVERNMENT. 

population, and as the conditions of our social and indus- 
trial life grow more complex. 

To Congress, then, as the most immediate representative 
of the people, the Constitution wisely gives the power to 
constitute tribunals inferior to the Supreme Court. The 
courts thus established will be considered later, in the dis- 
cussion upon the judicial department. 

10 To define and punish Piracies and Felonies committed 
on the high Seas, and Offences against the Law of Nations. 

The power "to define and punish piracies and felonies 
committed on the high seas " is a necessary concomitant 
of the power to regulate commerce with foreign nations ; 
the power to define and punish " offences against the law 
of nations " must result from the fact that upon the 
United States, and not upon the individual States, 
rests the responsibility in determining our international 
relations. 

"The phrase (high seas), embraces not only the waters 
of the ocean which are out of sight of land, but the 
waters of the sea-coast below low water mark, whether 
within the territorial boundaries of a foreign nation, or of 
a domestic state." 1 The jurisdiction of every nation, 
however, is held to extend three miles from the shore. 

The term piracy signifies by the law of nations depre- 
dations or aggressions committed upon the high seas by 
the crew of one vessel upon another, or by descent from 
the sea upon the coast for the purpose of robbery or 



^torj, Commentaries on the Constitution, Vol. III., p. 56. 



THE CONSTITUTION. 229 

other crime. This would not, of course, include the 
aggressions of public vessels or duly licensed privateers 
in time of war. 

A pirate by the law of nations is held to be an enemy 
of the human race, and hence liable to capture and pun- 
ishment by any nation. In this and every other civilized 
country the penalty of death attaches on conviction of 
this crime. 

Besides piracy as defined by international law, the 
statutes of the United States, and of other nations as 
well, declare to be piracies many other crimes committed 
on the high seas ; the carrying on of the slave-trade, for 
example, being generally denounced as such. 

Statutory piracy, i. e., piracy, as defined by the statutes 
of an individual nation or by the respective statutes of all 
the nations, is an offense which can be tried and punished 
only in the country to which the piratical vessel belongs, 
or within whose boundaries the crime itself was com- 
mitted. 

A felony is a crime punishable on conviction by death 
or by imprisonment in a prison or penitentiary ; an offense 
which is punishable by a fine or by imprisonment in a jail 
or house of correction is termed a misdemeanor. 

Congress has defined and provided for the trial and 
punishment of nearly every felony that may be com- 
mitted on the high seas ; but as the power it exercises in 
this respect is held to be exclusive as to crimes committed 
more than three miles from the shore, and as no act can 
be punished as a crime against the United States unless 
specified or defined as such by a National statute, it might 
happen that a very wicked or heinous act would go 



230 OUR SYSTEM OF GOVERNMENT. 

unpunished because not denounced as a crime by act of 
Congress. Within the three-mile limit, however, crimes 
are cognizable by the State off whose coast they are 
committed as well as by the United States, and the power 
of a State to punish evil deeds is not determined by its 
written law. Against a State there are common law 
crimes as well as statutory crimes, and, generally ^ speak- 
ing, whatever grave offenses are not comprised in the 
latter class, are among the former. 

The law of nations is the sum total of certain customs 
which the different nations have for purposes of con- 
venience and amity come to recognize as binding in their 
dealings with one another and one another's subjects. 
Unlike the power "to define and punish piracies, and 
felonies committed on the high seas," the power given to 
Congress by this part of the clause is not exclusive, it 
may be exercised by the State as well as by the National 
Government. The law of nations is a part of the law of 
the land, and if not expressed by statute is comprised in 
the common law of every State so far as the State juris- 
diction under the Constitution extends. 1 

The National Government, however, being alone re- 
sponsible to foreign nations, the final power of defining 
offenses against the established rules that govern its inter- 
course and relations with them, is logically placed in its 
hands. When Congress exercises this power, its acts are 
final, and the State governments are bound to observe 
and abide by them ; but when the National laws are lack- 
ing, the State courts have recourse to the express enact- 

JSee p. 6. 






THE CONSTITUTION. 23 I 

ments of their respective State legislatures, or to the 
general principles of the law of nations as a part of the 
common law. 

11 To declare War, grant Letters of Marque and Re- 
prisal, and make Rules concerning Captures on Land and 
Water. 

The power to declare war necessarily rests with the 
National Government, since upon the Nation as a whole 
are all the responsibilities and burdens of war. Also the 
terrible evils and sufferings involved should not be in- 
curred either rashly and impulsively or for the personal 
advantage of any individual or individuals, hence, to Con- 
gress, as a body feeling its direct responsibility to the 
people and whose acts closely reflect their sentiments, the 
decision of this most important of all questions of public 
policy is wisely committed. 

In monarchical governments the sovereigns have exer- 
cised the power to declare war, and, as history abundantly 
testifies, this power in their hands has often been used to 
secure personal aggrandizement and to satisfy unworthy 
ambitions. With the growth of popular rights, however,, 
the evils thus arising have been to a greater or less degree 
modified by the control exercised by the people through 
their representatives over the means for the prosecution of 
war; in England to-day, for example, the war power, 
nominally vested in the sovereign, is really in the hands 
of the House of Commons through its practically exclu- 
sive power to levy all taxes for public purposes. 

In the difficulties with France in 1798 and 1799, there 



232 OUR SYSTEM OF GOVERNMENT. 

was no formal declaration of war on the part of the 
United States, though a condition of actual warfare 
existed for some time upon the sea. 

The aggressions of Tripoli on the commerce of this 
country were resisted by force in 1801, the first step on 
our part being an attack by an American naval vessel on a 
piratical craft belonging to that power; President Jeffer- 
son, however, held that he had no authority to take active 
measures to prosecute the contest, but Congress, regard- 
ing the Barbary Powers but as a nest of pirates, empow- 
ered him to proceed against them with the greatest vigor, 
and made no direct declaration of war. In 18 12, Con- 
gress formally declared war against Great Britain and her 
dependencies ; this was the only act of this nature ever 
passed by our National legislature. In 1846, the war 
between Mexico and the United States was recognized by 
Congress as existing " by the act of the Republic of 
Mexico " only after two severe battles had been fought. 
The great civil strife was never directly recognized as a 
war by any branch of the National Government; it was 
referred to in enactments and proclamations as an insur- 
rection, or as a conspiracy to defeat the laws of the United 
States, which it was the President's duty to suppress. 

" By the Constitution Congress alone has the power to 
declare a national or foreign war. It cannot declare war 
against a State, or any number of States, by virtue of any 
clause in the Constitution. The Constitution confers on 
the President the whole executive power. He is bound to 
take care that the laws be faithfully executed. He is 
commander-in-chief of the Army and Navy of the 
United States, and of the militia of the several States 



THE CONSTITUTION. 233 

when called into the actual service of the United States. 
He has no power to initiate or declare a war, either 
against a foreign nation or a domestic State ; but by the 
acts of Congress of February 28, 1795, and of March 
3, 1807, he is authorized to call out the militia and 
use the military and naval forces of the United States in 
case of invasion by foreign nations, and to suppress insur- 
rections against the government of a State or of the 
United States. If a war be made by invasion by a foreign 
nation, the President is not only authorized, but is bound 
to accept the challenge without waiting for any special 
legislative authority ; and whether the hostile party be a 
foreign invader or States organized in rebellion, it is none 
the less a war, although the declaration of it be unilateral. 
A declaration of war by one country only is not 
a mere challenge to be accepted or refused at pleasure by 
the other." J 

The term "marque" means literally the "march," or 
frontier of a nation. Letters of marque and reprisal were 
in their origin probably of the nature of permission given 
by the sovereign to the subject authorizing him to pass 
beyond the boundary of his country and seize the goods 
of a certain foreign nation or of its citizens, whether on 
land or on the sea. At present, however, letters of 
marque and reprisal are simply commissions given to 
private individuals authorizing them to fit out vessels 
and capture on the sea the property of an enemy, or to 
make war upon him. These letters, showing the author- 
ization of the government to the officers and crew of the 



'Prize Cases, 2 Black, 668. 



234 OUR SYSTEM OF GOVERNMENT. 

vessel to carry on this species of warfare, entitle them to 
the treatment of prisoners of war if captured. If a pri- 
vate vessel in time of war without being first assailed 
should attempt to make captures or in any way commit 
aggressions, its crew, if captured, while they would not be 
treated with all the severity usually shown to pirates, 
would, nevertheless, fare very hard. 

Letters of marque and reprisal have at times been 
issued as a means of obtaining redress without recourse 
to open and complete war. Such was the case when the 
United States in the closing years of the last century 
authorized private parties to seize on the high seas ves- 
sels belonging to the subjects of France in retaliation for 
the aggressions committed by the armed cruisers of that 
power on American commerce. In a treaty made in 
1856, on the close of the Crimean war, the leading nations 
of Europe united in declaring that " privateering is and 
remains abolished." This declaration affects, however, 
only the parties to it. As the United States has never 
given its consent to this doctrine, in case of war between 
this and another country, Congress would be in no 
respect bound to abide by it, but would grant letters of 
marque, or not, as might seem expedient. 

The tendency of modern times seems to be against 
this method of carrying on war, as being liable to great 
abuse through the comparative lack of discipline and of 
responsibility of those engaged in it. During the Civil 
War, no letters of marque were issued by either side, the 
Alabama and other so-called privateers being public 
vessels, at least, so far as the insurgent government at 
Richmond was a real government. 



THE CONSTITUTION. 235 

The capture by a privateer or by a public vessel is not 
held to be consummated until the prize has been brought 
into port and duly condemned as such by judicial 
proceedings ; then, if the captor be a privateer, the vessel 
and goods become the prize of those to whom the 
letters of marque were issued ; if the captor be a public 
vessel, they pass into the possession of the Government, 
which, however, makes provision by law for a liberal 
allowance of prize money to the officers and crew of the 
fortunate ship. 

Under the general rule established by the law of nations, 
the property of subjects of a hostile power, and even 
debts due to them are liable to confiscation. The modern 
tendency is, however, in the direction of mitigating the 
harshness of this doctrine so far as it applies to property 
on land, humanity dictating that only so much of this 
should be seized as may be necessary for immediate mili- 
tary needs, or as may directly affect the power or plans 
of the enemy. The seizure of property upon the sea, 
being often an effective means of crippling an antagonist 
and bringing him to terms, and at the same time not 
directly bringing suffering and misery upon the non- 
combatants, is still held justifiable. 

In general, war effects a condition of complete non- 
intercourse and an interruption of all legal relations be- 
tween the members of the hostile nations ; all commerce 
between them is unlawful, and, though debts and obliga- 
tions, if not confiscated, revive when peace returns, they 
are dormant until that time, being neither enforceable, 
nor interest-bearing, nor affected by the statute of limita- 



236 OUR SYSTEM OF GOVERNMENT. 

tions, i. e.j the legal power of enforcing them is not 
affected by the time during which the state of war exists. 

12 To raise and support Armies; but no Appropriation of 
Money to that Use shall be for a longer Term than Two 
Years. 

The vesting in Congress of the power " to raise and 
support Armies " is a logical and practical consequence 
of the power of this body " to declare War." 

This clause was bitterly assailed when the Constitution 
was submitted to the people for their consideration, the 
chief argument against it being that Congress might use 
the power thus granted to destroy popular liberty. That 
standing armies have been used for such purposes is 
undeniable, that under our form of government, and 
under the general provisions of the Constitution they 
could be so used in this country is, however, practically 
impossible. " A government, the constitution of which 
renders it unfit to be entrusted with all the powers which 
a free people ought to delegate to any government, would 
be an unsafe depository of the NATIONAL INTERESTS. 
Wherever THESE can with propriety be confided, the 
coincident powers may safely accompany them." J 

During the War of the Revolution the American forces 
were raised by the different States on the requisitions of 
Congress ; this system which denied to those on whom 
rested the responsibility of conducting the war the means 
of properly and efficiently discharging their, great duty, 



'Federalist, No. 23. 



THE CONSTITUTION. 237 

was continued by the Articles of Confederation. In 
practice, it "was found replete with obstructions to a 
vigorous, and to an economical system of defence. It 
gave birth to a competition between the States, which 
created a kind of auction of men. In order to furnish 
the quotas required of them, they outbid each other, till 
bounties grew to an enormous and insupportable size. 
The hope of a still farther increase afforded an induce- 
ment to those who were disposed to serve, to procrastinate 
their enlistment ; and disinclined them from engaging for 
any considerable periods. Hence, slow and scanty levies 
of men in the most critical emergencies of our affairs ; 
short enlistments at an unparalleled expense ; continual 
fluctuations in the troops, ruinous to their discipline, and 
subjecting the public safety to the perilous crisis of a 
disbanded army. Hence also, those oppressive expe- 
dients for raising men, which were upon several occasions 
practiced, and which nothing but the enthusiasm of liberty 
would have induced the people to endure." 1 

This clause authorizes Congress to provide for a stand- 
ing army as well as for the large forces necessary in the 
time of great wars. 

The standing army of the United States has always 
been comparatively small. By an act of Congress in 
1790, it was fixed at 12 15 men; this number was in- 
creased from time to time, and during the Civil War 
reached its greatest aggregate, 35,000 men; in 1866, 
however, this number was reduced to 25,000, where it 
still remains. 



'Federalist, No. 22. 



238 OUR SYSTEM OF GOVERNMENT. 

The limitation of the time for which money is to be 
appropriated for the use of the army was made for the 
purpose of keeping it within easy reach and control of 
the people, acting through their representatives ; though 
the Constitution prescribes two years as the limit, Con- 
gress has never made appropriations for the army for a 
longer term than one year. 

^To provide and maintain a Navy. 

What was said of the necessity of vesting in Congress 
the power to raise and support armies, applies equally 
well to the clause under consideration. The government 
of the Nation, if it is to be efficient, must be endowed 
with powers corresponding to its responsibilities. Though 
the proposition to vest in Congress the power to provide 
and maintain a navy was not questioned in the Conven- 
tion, it met with opposition in several of the States on the 
grounds that a navy would be exceedingly expensive, that 
it would be likely to embroil the country in wars with 
foreign nations, and that it would be a powerful weapon of 
oppression in the hands of the Executive. Not until after 
the series of brilliant victories won by our little navy in 
the second war with England did these unreasonable and 
absurd prejudices disappear, and the people universally 
recognize its incalculable value as a means of National 
defense. 

^To make Rules for the Government and Regulation of 
the land and naval Forces. 



THE CONSTITUTION. 239 

This power is a necessary incident of those immediately 
preceding, and, had it not been expressed, would un- 
doubtedly be held as existing by direct implication. 

The rules enacted by Congress for the enforcement of 
discipline and the securing of a proper administration in 
the army and navy are termed Articles of War. 1 " In 
their origin, however, a majority of these Articles con- 
siderably pre-date the Constitution, being derived from 
those adopted by the Continental Congress between 1775 
and 1786, which were themselves taken from pre-exist- 
ing British articles having their inception in remote 
antiquity." 

In 1806, a new code was adopted which superseded 
that previously existing; this, amended from time to time, 
remained in force until 1874, when it was replaced by the 
code that constitutes the present Articles of War for the 
government of our army and navy. 

In addition to the Articles of War enacted by Congress, 
the President as commander-in-chief is authorized from 
time to time to make and publish regulations for the 
army and navy. 

These regulations must in no way contravene the 
Articles of War or other laws pertaining to military 
affairs, on the contrary, they must have for their main 
object the efficient administration of these enactments of 
the legislative body ; generally speaking, they deal with 
matters of military administration and routine, order of 
promotion, details of discipline, the constitution and 
methods of courts-martial, etc. The line of demarcation, 



Winthrop, Mil. Law, p. 4. 



240 OUR SYSTEM OF GOVERNMENT. 

however, between what is a proper matter for Con- 
gressional action, and what may be left to the President to 
provide for by regulation is exceedingly vague ; in fact, 
no rule or test can be laid down in the matter ; each case 
must be determined as it comes up according to its own 
merits and circumstances. 

The power given to the President in virtue of his being 
commander-in-chief to make regulations for the army 
and navy, is similar to that vested in the different cabinet 
officers to regulate the internal administration of their 
respective departments. These regulations " are not law 
in the sense of being a part of ' the law of the. land,' nor 
are they embraced in the designation, ' laws of the 
United States,' but are law, and operative, as regulations 
only. As such they are law to the army and those whom 
they may concern, and so far are binding and conclusive. 
The President, equally with the most subordinate officer, 
is bound by executive regulations ; although he may be 
empowered to alter or abrogate them, they are conclusive 
upon him while they remain in force." x They are also 
recognized as conclusive upon the courts in cases to which 
they apply ; and when made in and for one department 
of the government, they are conclusive upon any other 
department in which they are found to be pertinent to the 
subject. 

In civil life, the constitutional and legal protection of 
individual independence, and the care with which the 
fundamental law requires the governing authority to 
clearly establish its rights before interfering with personal 



1 Winthrop, Mil. Law, p. 29. 



THE CONSTITUTION. 241 

freedom and possessions are the very foundations of our 
political structure; but these safeguards, beneficial as 
they are in the ordinary relations of a government to its 
subjects, would, in the nature of the case, be destructive 
if maintained in matters pertaining to military organiza- 
tion and discipline. For a military force to do the work 
for which it is designed most effectively, there must be 
the most complete subordination of the individuals com- 
posing it to a single will. The character of military 
government, whether in a nation or an army must be 
essentially monarchical, if not despotic. Acting in ac- 
cordance with one's own personal opinion or judgment, 
which in civil life is commendable, in military life could 
not fail to be disastrous. Prompt and unquestioning 
obedience is the first virtue of a soldier, and in those 
commanding military organizations must be vested the 
power of securing such obedience. Hence, those com- 
posing the personnel of our army and navy must be 
regarded as forming in the contemplation of the Con- 
stitution a distinct class to whom, so far as military 
offenses are concerned, the protection of life, liberty, and 
property, guaranteed to the rest of our people by that 
instrument does not extend. 

15 To provide for calling forth the Militia to execute the 
Laws of the Union, suppress Insurrections and repel 
Invasions. 

In 1792, Congress enacted that ''Every able-bodied 
male citizen of the respective States, resident therein, who 
is of the age of eighteen years, and under the age of 

1G 



242 OUR SYSTEM OF GOVERNMENT. 

forty-five, shall be enrolled in the militia." A subsequent 
section exempts from militia duty the members of Con- 
gress, the omcers of the two Houses, the executive and 
judicial omcers, postmasters and those employed in the 
transportation of the mails, employes in the arsenals of 
the United States, pilots, sailors actually employed in the 
sea-service of any citizen, and all persons exempted by 
the laws of the respective States. 

The act provided for the organization of the entire 
body of the militia so enrolled, but declared that any 
military organization established in a State, but not incor- 
porated with the general body of the militia, " shall be 
allowed to retain their accustomed privileges, subject, 
nevertheless, to all other duties required by law in like 
manner as the other militia." x 

The organization and the discipline as a military force 
of all the able-bodied men of the country between the 
ages of eighteen and forty-five proving impracticable, the 
greater part of the act of 1792, though remaining on the 
statute-book, has become obsolete ; hence, the military 
organizations established by the different States are the 
only part of the militia available for immediate service 
under the provisions of the clause under consideration. 

These military organizations, or the National Guard as 
they are now termed, can be called forth as such by 
Congress whose power is not limited to providing for a 
general summons for the service of those whom the law 
declares to constitute the militia of the country. 

In 1795, in consequence of an insurrection in Western 



^ect. 1641, Rev. Stat. U. S. 



THE CONSTITUTION. 243 

Pennsylvania, known as the "Whiskey Rebellion," which 
grew out of resistance to the revenue laws of the United 
States, Congress authorized the President to call forth 
such number of the militia as he might deem necessary 
in order to repel invasion or suppress insurrection. In 
the order issued, the governors of Pennsylvania and the 
adjoining States were summoned to send militia and 
notified that so far as possible, they should send their 
volunteer organizations, these being well armed and 
disciplined. 

In the war of 181 2, a body of the militia was again 
called out, consisting in part of the State military organ- 
izations already formed. In the Civil War the militia 
was again called upon, but in this terrible struggle the 
needs of the Government were so great that in addition 
to the State organizations and volunteer forces, recourse 
was had to drafts by which a large number of those who 
made up the unorganized militia of the country were 
brought into active military service. 

In each of these cases Congress " provided for calling 
forth the militia" by giving the President authority to 
summon them. The power thus placed in the hands of 
the Executive was final, and no other person, official or 
otherwise, had the right to question the validity or bind- 
ing force of his decision. "The power itself is to be 
exercised upon sudden emergencies, upon great occasions 
of State, and under circumstances which may be vital to 
the existence of the Union. A prompt and unhesitating- 
obedience to orders is indispensable to the complete 
attainment of the object. The service is a military 
service, and the command of a military nature ; and in 



244 0UR SYSTEM OF GOVERNMENT. 

such cases every delay and every obstacle to an immediate 
and efficient compliance, necessarily tend to jeopard the 
public interests." J The purposes of calling forth the 
militia are declared to be " to execute the laws of the 
Union, suppress insurrections, and repel invasions." By 
thus limiting the power of Congress in this respect, the 
Convention intended to create a safeguard against the 
possible danger that the new government might enter 
upon a career of conquest, and that the people by being 
dragged into foreign wars might be reduced to a condi- 
tion scarcely more tolerable than that of the inhabitants 
of monarchical Europe. 

During the long contention of Edward III. and his 
successors with the kings of France, Parliament regarding 
these wars as a personal matter of the sovereign rather 
than as of national concern, appears to have succeeded in 
freeing the people from compulsory military service out- 
side of England. This policy, which then became a part 
of the constitution of England, is maintained even to the 
present day, though its justification, the independent 
power of the sovereign to declare and carry on war, has 
long since ceased to exist. In this doctrine of the 
English constitution originated a wide-spread belief among 
our people that the militia cannot be constitutionally sent 
beyond the limits of the country. 

The framers of the Constitution, however, could 
scarcely have intended that when a war had been brought 
on by the invasion of our domain by a foreign enemy, 
which the militia had been called forth to resist, a blow 



Martin vs. Mott, 12 Wheat., 19. 



THE CONSTITUTION. 245 

could not be struck in return by the government by 
means of all the forces it could collect, or that an im- 
mediately threatened invasion might not be anticipated by 
a counter invasion of the territory of the enemy, and the 
militia be called forth for that purpose. 

It being one of the aims of the Constitution to avoid 
the existence of a large standing army, the National 
Government must ultimately depend in the great emer- 
gencies of war upon the militia ; to so narrow the power 
given to Congress by this clause as to render the Govern- 
ment impotent to protect the people efficiently at a most 
important and critical juncture, and to deny to it the 
means of adequately meeting the tremendous responsi- 
bilities placed upon it by war, seem the climax of 
absurdity. The results of such vicious teachings were 
well illustrated at the battle of Queenston in 1812, when 
the refusal on constitutional grounds of a large militia 
force to cross over into Canada to assist a body of their 
fellow militia-men and regular troops that was bravely 
maintaining an unequal struggle there, brought disgrace 
and disaster on the American army. 

16 To provide for organising, arming, and disciplining 
the Militia, and for governing such Part of them as may 
be employed in the Service of the United States, reserving 
to the States respectively, the Appointment of the Officers, 
and the Authority of training the Militia according to the 
discipline prescribed by Congress. 

The main object of this clause is to establish in the 
entire military force of the country that harmony of 



246 OUR SYSTEM OF GOVERNMENT. 

organization and action which is indispensable to its 
efficiency in time of war. While much may depend on 
the good judgment and courage of the subordinate officers 
and soldiers, the army which responds on the field of bat- 
tle the most readily to the commands of its leaders, that 
can perform its evolutions with the least confusion, is, 
other things being not too unequal, assured of the vic- 
tory. For the same reason it is also necessary that the 
militia when in the service of the United States should be 
under National control and that when this control is once 
assumed, the State should not be able to recall, or in any 
way exercise power over its militia that has been consti- 
tutionally called forth ; for then it has become as much 
a part of the military forces of the United States as are 
the soldiers of the regular army. 

The reservation to the individual States of the control 
of their militia is advantageous and politic considered 
both from the standpoint of public policy and of the 
efficiency of the militia itself. As local organizations the 
militia would be a strong safeguard against any attempt 
to destroy our federal system by establishing by force a 
strong centralized government ; as the regular army 
represents the central power, the Nation, so the militia 
organizations represent the different States and are a 
guarantee of their existence. 

The officers of the militia when they pass into the 
service of the United States are subordinate to and bound 
to obey their ranking officers in the organizations into 
which their own are merged. Militia officers in the 
service of the United States are also subject to removal 
by the President, but he has no power to fill the vacancies 



THE CONSTITUTION. 247 

thus created ; in these and in all other cases, they must be 
filled by new appointments made by the authority of the 
State. 

Besides the regular troops and the militia, large forces 
of volunteers have been employed in every great war in 
which the United States has been engaged. In the con- 
test with Mexico, the number of volunteers precluded the 
necessity of making any call whatever upon the militia. 
Upon the call for volunteers made by the President, who 
has been duly authorized to take this step by Congress, 
those volunteering enter directly into the service of the 
United States ; their officers are appointed as National 
officers, and though the organizations bear the name of 
the States within which they are respectively formed, 
they are, in fact, from their inception, as much within the 
control of the National Government as is the standing 
army. 

17 To exercise exclusive Legislation in all Cases whatso- 
ever, over such District (not exceeding ten Miles square) as 
may, by Cession of particular States, and the Acceptance of 
Congress, become the Seat of the Government of the 
United States, and to exercise like Authority over all 
Places purchased by the Consent of the Legislature of the 
State in which the same shall be, for the erection of Forts, 
Magazines, Arsenals, dock-Yards, and other needful Build- 
ings; — And 

"The indispensable necessity of complete authority at 
the seat of government, carries its own evidence with it. 
It is a power exercised by every legislature of the Union, 



248 OUR SYSTEM OF GOVERNMENT. 

I might say of the world, by virtue of its general 
supremacy. Without it, not only the public authority 
might be insulted and its proceedings be interrupted with 
impunity, but a dependence of the members of the 
general government on the state comprehending the seat 
of the government, for protection in the exercise of their 
duty, might bring on the National councils an imputation 
of awe or influence, equally dishonorable to the govern- 
ment and dissatisfactory to the other members of the 
Confederacy. This consideration has the more weight, as 
the gradual accumulation of public improvements at the 
stationary residence of the government, would be both 
too great a public pledge to be left in the hands of a sin- 
gle State, and would create so many obstacles to a 
removal of the government, as still further to abridge its 
necessary independence." x 

The disadvantage of the general Government being 
obliged to depend on a State for protection while in the 
discharge of its duties was strikingly shown near the close 
of the War for Independence when Congress, then sitting 
at Philadelphia, was surrounded by a body of mutinous 
recruits who insolently and threateningly demanded their 
pay. Congress appealed to the executive authority of the 
State for protection, but under the constitution of Penn- 
sylvania this authority was vested in a council of thirteen, 
and at this juncture this body showed so much timidity 
and irresolution that Congress indignantly removed to 
Princeton, New Jersey. 

From Princeton it shortly afterward went to Annapolis, 



federalist, No. 43. 



THE CONSTITUTION. 249 

from Annapolis to Trenton, and from Trenton to New 
York, the last named city being the seat of the National 
Government when the Constitution went into effect. 
Undoubtedly the uppermost idea in the minds of the 
members of the Convention in framing the above clause 
was to avoid in the future any possible repetition of the 
disgraceful occurrence at Philadelphia and of the humili- 
ating spectacle of the National Government wandering 
about the country in search of an abiding-place. 

The territory in which the capital was finally located 
was ceded to the United States by Maryland and Virginia, 
and accepted by Congress in July, 1790. The act of 
acceptance provided for a district not exceeding ten miles 
square to be located on the Potomac " between the 
mouths of the Eastern Branch and Connogochegue " by 
commissioners acting under the direction of the Presi- 
dent. To the future city, when its site was finally 
determined, the name of Washington was fittingly given, 
and the entire district, which was divided into counties, 
one on either side of the Potomac, was called the District 
of Columbia. The same act also provided that before the 
first Monday of December of that year, 1790, the govern- 
ment offices should be removed to Philadelphia, and 
should remain there until the first Monday of December, 
1800, when they should be removed to the permanent 
capital. 

The territory originally ceded to the United States lay 
on both sides of the Potomac, but in 1846, Congress 
ceded back to Virginia the part lying on the west bank of 
the river, thus reducing the District to its present area of 
about sixty-four square miles. 



250 OUR SYSTEM OF GOVERNMENT. 

When Congress assumed control of the District in 
1800, it declared that the laws of Maryland and of Vir- 
ginia should continue in force over their respective ces- 
sions. Two years later a municipal government for 
Washington was created, consisting of a mayor and coun- 
cil elected by the citizens, Congress, however, exercising 
final control. Georgetown, already established within the 
limits of the District was allowed to retain its independent 
municipal existence. In 1871, Congress provided a gov- 
ernment for the whole District, consisting of a governor 
and council nominated by the President and confirmed 
by the Senate, and a House of Delegates elected by the 
people ; three years later this form of government was 
abolished and in its place was substituted the one at 
present existing; this consists of a board of three com- 
missioners nominated by the President and confirmed by 
the Senate, a supreme court consisting of six judges, 
and also a police judge, all appointed in the same manner 
as the commissioners ; Congress itself acts as the law- 
making body of the District. One-half of the expenses 
of the District is met by taxes levied upon its inhabitants, 
and one-half is paid from the National Treasury ; all its 
financial operations are administered directly from the 
Treasury Department. 

The second part of this clause, giving to Congress the 
power to exercise exclusive legislation over places ceded 
by any State for the erection of forts, magazines, etc., is 
justified by the same course of reasoning that justifies its 
exclusive power of control over the National Capital. 
Over whatever means the Nation possesses or creates for 
National ends, for the common defense or welfare, no 



THE CONSTITUTION. 25 I 

individual State should exercise power. What concerns 
all, should be controlled by all. Ordinarily in the cession 
of territory to the Nation, the States reserve the rights to 
serve writs, both criminal and civil, therein ; without such 
reservation the ceded territory might easily become a 
temporary refuge for criminals and for those who en- 
deavor to avoid the fulfilment of their legal duties and 
obligations. Crimes committed in such territory are, of 
course, within the jurisdiction of the United States, and 
not within that of the State that has made the cession, 
unless a reservation to this effect was expressly made. 

18 To make all Laws which shall be necessary and proper 
for carrying into Execution the foregoing Powers, and all 
other Powers vested by this Coiistitution in the Government 
of the United States, or any Department or Officer thereof 

In the Constitution of the United States we find 
expressed all the great and primary powers possessed by 
Congress ; whatever other powers Congress constitu- 
tionally exercises must be of a subordinate and secondary 
nature, " necessary and proper" i. e., suitable or advan- 
tageous, for carrying into execution the powers expressly 
granted. 

To have enumerated all the means by which Congress 
is to make its legislative authority effective would have 
been impossible. " Had the Constitution been silent on 
this head, there can be no doubt that all the particular 
powers requisite as means of executing the general 
powers would have resulted to the government by una- 
voidable implication. No axiom is more clearly estab- 



252 OUR SYSTEM OF GOVERNMENT. 

lished in law, or in reason, than that wherever the end is 
required, the means are authorized ; wherever a general 
power to do a thing is given, every particular power 
necessary for doing it is included." J The main advan- 
tage in inserting in the Constitution the clause under con- 
sideration lies in " removing a pretext which may be 
seized on critical occasions for drawing into question the 
essential powers of the Union." ' 

" A constitutution, to contain an accurate detail of all 
the subdivisions of which its great powers will admit, and 
of all the means by which they may be carried into exe- 
cution, would partake of the prolixity of a legal code, 
and could scarcely be embraced by the human mind. 
Its nature therefore requires that only its great 
outlines should be marked, its important objects desig- 
nated, and the minor ingredients which compose those 
objects be deduced from the nature of the objects them- 
selves." 2 

"We admit, as all must admit, that the powers of gov- 
ernment are limited, and that its limits are not to be 
transcended. But we think the sound construction of 
the Constitution must allow to the National legislature 
that discretion, with respect to the means by which the 
powers it confers are to be carried into execution, which 
will enable that body to perform the high duties assigned 
to it, in the manner most beneficial to the people. Let 
the end be legitimate, let it be within the scope of the 
Constitution, and all means, which are appropriate, which 
are plainly adapted to that end, which are not prohibited, 



'Federalist, No. 44. 2 M'Culloch vs. Md., 4 Wheat., 316. 



THE CONSTITUTION. 253 

but consist with the spirit and letter of the Constitution, 
are constitutional." * 

Sec. 9. l The Migration or Importation of such Per- 
sons as any of the States now existing shall think proper 
to admit, shall not be prohibited by the Congress prior to 
the Year one thousand eight hundred and eight, but a Tax 
or duty may be imposed on such Importation, not exceeding 
ten dollars for each Person. 

Section nine consists of restrictions upon the power of 
Congress ; some of them, viewed in the light of the con- 
struction afterwards given to the Constitution by Congress 
and by the courts, may now seem superfluous ; but it 
was impossible to anticipate the exigencies and the ten- 
dencies which might be developed in the future, hence 
the framers of this instrument with a wise caution 
provided safeguards against the abuse of power, which, 
in themselves, might have been regarded as logically 
unnecessary. 

Clause one of this section had reference to the importa- 
tion of slaves, with which Congress would have had the 
right to interfere in virtue of its power over commerce 
with foreign nations had this prohibition not been made. 
Long before the framing of the Constitution, the evils of 
slavery, and especially of the slave trade, had been 
recognized, and leading men of the North and of the 
South alike had united in condemning them ; when, how- 
ever, it was proposed in the Convention to diminish the 



'M'Culloch vs. Md. 4 Wheat., 316. 



254 0UR SYSTEM OF GOVERNMENT. 

supply of slaves by putting an end to the bringing of 
these unfortunate beings into this country from Africa, the 
delegates from two States declared that the people whom 
they represented would not accede to the Constitution 
if a provision to this end should be inserted in this 
instrument. 

Slow and halting as this step in the right direction now 
seems to us, at the time when the Constitution was framed 
the slave trade " was carried on with the encouragement 
and support of every civilized nation in Europe; and by 
none with more eagerness and enterprise than the parent 
country. America stood forth alone, uncheered and 
unaided, in stamping ignominy upon this traffic on the 
very face of her constitution of government, although 
there were strong temptations of interest to draw her 
aside from the performance of this great moral duty." x 

In I 794, Congress prohibited American citizens carry- 
ing on the slave trade between foreign countries, and in 
March, 1807, passed a law to take effect January 1, 1808, 
forbidding the further importation of slaves into this 
country. Moderate laws failing to entirely suppress this 
abominable traffic in human beings, in 1820 it was de- 
clared to be piracy, and the penalty of death was 
denounced against those committing the offense. 

2 The Privilege of the Writ of Habeas Corpus shall not 
be suspended, unless when in Cases of Rebellion or Inva- 
sion the public Safety may require it. 

By section 39 of the Magna Charta, King John was 



'Story, Commentaries on the Constitution, Sect. 1328. 



THE CONSTITUTION. 255 

made to declare : — " No freeman shall be taken, or im- 
prisoned, or disseized, or dispossessed, or exiled, or in 
any way brought to harm, nor will we go upon him, or 
send upon him, unless by the judgment of his peers, or 
the law of the land." Afterwards, to make this declara- 
tion good against attempts at arbitrary imprisonment, the 
writ of habeas corpus was invented. This was an order 
from a judge, at the request of one held in custody or 
of some one acting in his behalf, directing the person 
detaining him to have the body of the person so held, 
together with the authorization for his detention before 
the court at a certain time and then and there to do what 
the court might order. Thus it was placed in the power 
of a judge to determine whether a prisoner was detained 
legally or illegally, and to remand him to custody, or to 
set him free, accordingly. But as the judges were them- 
selves appointed by the sovereign and might be removed 
by him, the writ for a long time was but an imperfect pro- 
tection against the arbitrary will of the king. Finally in 
1679, a habeas corpus act was passed by Parliament, 
which affixed severe penalties against the offense of diso- 
beying its provisions, whether committed by judge or 
jailor; by such means this great safeguard of personal 
liberty became and remained efficacious. 

" It is a very common mistake .... to suppose 
that this statute of Charles II. enlarged in a great degree 
our liberties, and forms a sort of epoch in their history. 
But though a very beneficial enactment, and eminently 
remedial in many cases of illegal imprisonment, it intro- 
duced no new principle, nor conferred any right upon the 
subject. ... It was not to bestow an immunity from 



256 OUR SYSTEM OF GOVERNMENT. 

arbitrary imprisonment, which is abundantly provided in 
the Magna Charta (if indeed it were not much more 
ancient), that the Statute of Charles II. was enacted, but 
to cut off the abuses by which the government's lust of 
power, and the servile subtlety of crown lawyers, had 
impaired so fundamental a privilege." l 

The judges of both our National and State courts have 
the power to grant this writ ; but this power cannot be 
used as a means whereby one government can interfere 
with the legitimate authority of the other. That is, a 
State cannot inquire into the legality of the detention of 
a person held by the authority or the color of authority 
of the United States ; in such case, the writ of habeas 
corpus must be issued by a judge of one of the National 
courts, or not at all ; on the other hand, a judge of a 
United States court cannot issue the writ in. behalf of a 
person detained by State authority, or under State law, 
unless such person claims that he is held in violation of 
the Constitution of the United States, or some law or 
treaty made in pursuance thereof; 2 then the power of the 
National court to issue the writ follows as a consequence 
of the supremacy of the Government of the United States 
within the limits determined by the Constitution ; this 
same supremacy also denies to a court of a State the 
power to issue the writ of habeas corpus in favor of a 
person held by National authority on the ground that he 
is held contrary to the constitution or laws of that State. 
The suspension of the privilege of the writ of habeas 
corpus does not suspend the writ itself ; the judge issues 

Dallam, Const. History of England, Chap. XIII. 
2 See Art. VI., Sect, 2. 



THE CONSTITUTION. 257 

it as usual, but the person on whom it is served may- 
refuse to obey it. Neither does this suspension legalize 
any wrongful arrest or detention, and an officer or other 
person is fully liable to punishment for this offense com- 
mitted during such period. 

The writ of habeas corpus being so important a safe- 
guard of liberty, the Constitution wisely limits the sus- 
pension of the privilege of it to those times when the 
public welfare may clearly and imperatively demand that 
personal rights shall yield to pressing public necessity. 
In the midst of war, arbitrary rule must prevail to a 
greater or less degree as the exigencies may demand, and 
the laws, to the same extent, must remain silent. 

The fact that this clause was made a part of that 
section in which are set forth express restrictions on the 
power of Congress, shows clearly that in the minds of 
the framers of the Constitution, the power to suspend the 
privilege of the writ of habeas corpus in this country, 
as in England, rests with the legislative branch of the 
Government. 

At the beginning of the Civil War, President Lincoln 
suspended the privilege of the writ in certain places as a 
military measure ; in doing this he acted on the advice of 
Attorney-General Bates, whose opinion was that in such 
great emergencies the Executive had power to take this 
step even before Congress had acted. The doctrine, 
however, that has generally prevailed, and which at pres- 
ent may be regarded as established, is that the President 
has no such power, and that in every case Congress must 
take the initiative ; even the constitutionality of the law 
passed by this body in 1863, authorizing the President to 
n 



258 OUR SYSTEM OF GOVERNMENT. 

suspend the privilege of the writ of habeas corpus during 
the rebellion, "whenever in his judgment the public 
safety may require it," has been strongly questioned on 
the ground that no branch of the Government can sur- 
render any power committed to it, to be exercised by 
any other authority. 

On several occasions the privilege of the writ of habeas 
corpus has been denied by military officers ; in such cases, 
the one refusing to obey the mandate of the court is liable 
to punishment for contempt of its authority. When it 
becomes of great public importance that this privilege 
should be suspended and there is no legislative sanction 
for this step, the maxim, " the safety of the people is the 
highest law " must be followed, and the officer must look 
to Congress or to the President for protection from the 
punishment that may follow his illegal though salutary 
act. 

$No Bill of Attainder or ex post facto Law shall be 
passed. 

By the common law when a person was sentenced to 
death, attainder, or extinction of his civil rights and capac- 
ities, and, in fact, of his legal existence was an immediate 
consequence ; thus, he could not own, inherit, or transmit 
property, and what he possessed prior to his sentence 
escheated to the government. 

A bill of attainder is a legislative act condemning a 
certain person, or certain persons to death ; if a lesser 
punishment is declared against the offender, the law is 
more correctly termed a bill of pains and penalties. In 



THE CONSTITUTION. 259 

the construction given to the Constitution by the Supreme 
Court, however, the expression, " bill of attainder," is 
held to denote every legislative act whose effect would be 
to inflict a punishment or penalty by its own force, and 
without the intervention of judicial trial. 

" Every one must concede that a legislative body, from 
its numbers and organization, and from the very intimate 
dependence of its members upon the people, which ren- 
ders them liable to be peculiarly susceptible to popular 
clamor, is not properly constituted to try with coolness, 
caution, and impartiality a criminal charge, especially in 
those cases in which the popular feeling is strongly 
excited, — the very class of cases most likely to be prose- 
cuted by this mode. . . . And what could be more 
obnoxious in a free government than the exercise of such 
a power by a popular body, controlled by a mere 
majority, fresh from the contest of exciting elections, and 
quite too apt, under the most favorable circumstances, to 
suspect the motives of their adversaries, and to resort to 
measures of doubtful propriety to secure party ends?" l 

The use of bills of attainder has not been uncommon 
in European countries; in England, especially, it was 
formerly a powerful means of oppression in the hands of 
a servile or of a combative Parliament ; often in that coun- 
try it was carried even to the extreme of attainting persons 
after their death. 

In several of the States during the Revolutionary War 
the property of those who adhered to the cause of the 
mother country was seized by legislative order, and in 



Cooley, Const. Limitations, Ch. IX. 



26o OUR SYSTEM OF GOVERNMENT. 

one case, not only was the property of certain absent 
loyalists confiscated, but they themselves were condemned 
to death without trial. During the period of the Civil 
War also, laws were passed by Congress which were held 
by the Supreme Court to come within the scope of the 
prohibition of the clause under consideration. 

The prohibition contained in this clause in regard to the 
passage of ex post facto laws is a further safeguard to the 
people against possible abuse of power by Congress. 
The expression, ex post facto laws, literally signifies laws 
which in any way. affect events which occurred prior to 
their being made ; but according to the general accepta- 
tion of the term, and in the intent of the Constitution, such 
laws are, — " 1st. Every law that makes an action done 
before the passing of the law, and which was innocent 
when done, criminal, and punishes such action : 2d. 
Every law that aggravates a crime, or makes it greater 
than it was when committed: 3d. Every law that changes 
the punishment, and inflicts a greater punishment than the 
law annexed to the crime when committed : 4th. Every 
law that alters the legal rules of evidence, and receives 
less or different testimony than the law required at the 
time of the commission of the offense, in order to convict 
the offender. All these, and similar laws, are manifestly 
unjust and oppressive. In my opinion, the true distinction 
is between ex post facto laws, and retrospective laws. 
Every ex post facto law must necessarily be retrospective; 
but not every retrospective law is an ex post facto law. 
The former only are prohibited." x Enactments that 



*J. Chase, in Calder vs. Bull, 3 Dall., 386. 



THE CONSTITUTION. 26 1 

mollify the rigor of the criminal law, or that in any way 
are for the advantage of the person accused, whether 
they pertain to matters of evidence, or the mode of con- 
ducting trials, or the severity of punishment, are not ex 
post facto laws and may constitutionally apply to events 
that have happened before their passage, in fact, they 
usually do apply, if existing when the trial for the offense 
takes place. 

*No Capitation, or other direct, tax shall be laid unless 
in Proportion to the Census of Enumeration herein before 
directed to be taken. 

The object of this clause is to prevent any inference 
being drawn from the general power " to lay and collect 
Taxes" conferred upon Congress by Clause 1, Section 1 
of this Article, that direct taxes might be levied in 
any other manner than that prescribed in Clause 3 of 
Section 2. 

Undoubtedly, had the present clause not been inserted, 
any method of levying direct taxes other than that of 
apportioning them among the several States " according 
to their respective Numbers," would be held to be in 
violation of the Constitution. 

5 No Tax or Duty shall be laid on Articles exported 
from any State. 

The prohibition here placed upon Congress in regard 
to the levying of taxes upon exports, was made in defer- 
ence to the delegates of the southern States who believed 



262 OUR SYSTEM OF GOVERNMENT. 

that in the near future that section would furnish the 
greater part of the commodities exported from the coun- 
try, and that the levying of export duties would, in all 
probabilities, be especially burdensome to the people 
whom they represented. 

Generally speaking, duties on articles exported, would, 
above all other taxes, be liable to be unequally levied 
upon the different parts of the country, and hence to 
cause sectional jealousy and hard feelings. 

Although the particular conditions anticipated by those 
who brought about the insertion of this prohibition in 
the Constitution have never been realized, it is undoubtedly 
of the greatest advantage, and one of the many cases 
where the framers of this instrument " builded better 
than they knew." 

b No Preference shall be given by any Regulation of 
Commerce or Revenue to the Ports of one State over those 
of another: nor shall Vessels bound to, or from, one State, 
be obliged to enter, clear, or pay Duties in another. 

The discrimination between the different States in com- 
mercial matters which Congress might most easily and 
efficiently make use of if its powers were unrestricted, 
is guarded against by the provision that " all Duties, 
Imposts and Excises shall be uniform throughout the 
United States." l 

The first part of the clause under consideration enforces 
this provision, and declares that in addition to a uniform 



1 Article I., Sect. 8, CI. i. 



THE CONSTITUTION. • 263 

rate of imposts and duties, the methods of levying and 
collecting them, and all regulations concerning them, and 
all regulations concerning international and inter-state 
commerce generally must be the same in all the States. 

"To enter" means here to report to the collector of 
customs the arrival of a vessel within the port or customs 
district, to lodge with him a detailed statement of its 
cargo, and to pay all the dues and fees involved as well 
as the import duties that may be imposed by law. 

"To clear" from a port is to report all essential facts 
n regard to a vessel and her cargo to the proper official, 
n this country a collector of customs, and to receive 
from him a certificate that such vessel has " entered " and 
"cleared" according to law. The detailed declaration 
concerning the cargo to which the master of the vessel 
subscribes under oath is called a " manifest." 

Obviously for Congress to compel a vessel bound to or 
from one State to enter, clear, or pay duties in another 
would be an undue preference in commerce in favor of 
the latter at the expense of the former ; hence, the justice 
and wisdom of this clause. 

"'No Money shall be drawn from the Treasury, but in 
consequence of appropriations made by Law; and a regular 
Statement and Account of the Receipts and Expenditures 
of all public Money shall be published from time to time. 

The object of this clause is to place the control of the 
public purse in the hands of Congress and to hold this 
body responsible to the people for any abuse of its trust. 

At the time of the framing of the Constitution, the 



264 OUR SYSTEM OF GOVERNMENT. 

history of England had plainly demonstrated that the 
great defense of the people against the exercise of arbi- 
trary power by the executive authority lies in their control 
through their representatives of all matters pertaining to 
the appropriation of money for governmental purposes, 
and, while other parts of the Constitution plainly imply 
that this power is vested in Congress, this clause puts the 
matter beyond any cavil or doubt. A question might be 
raised however, whether, when a claim against the Govern- 
ment has been judicially passed upon and ascertained, it 
ought not to be directly paid without the intervention 
and chance of a possible veto by Congress ; yet even this 
" might give an opportunity for collusion and corruption 
in the management of suits between the claimant, and the 
officers of the government entrusted with the perform- 
ance of this duty. Undoubtedly, when a judgment has 
been fairly obtained, by which a debt against the govern- 
ment is clearly made out, it becomes the duty of Congress 
to provide for its payment;" I and this, Congress has gen- 
erally done in a just and liberal spirit. The regular state- 
ment and account of the receipts and expenditures of 
public money here required, is made annually to Congress 
at the beginning of its regular session in December by the 
Secretary of the Treasury. The fiscal year of the gov- 
ernment, as established by law, extends from July 1 to 
June 30, inclusive; i. e., all the statements, estimates, etc., 
pertaining to the National finances are made for this 
period instead of for the calendar year, in order that the 
reports may be ready for Congress when that body meets. 



^torj, Commentaries on the Constitution, Vol. III., Ch. 32. 



THE CONSTITUTION. 265 

8 No Title of Nobility shall be granted by the United 
States: And 710 person holding any Office of Profit or 
Trust under them, shall, without the Consent of Congress, 
accept of any present, Emolument, Office, or Title, of any 
kind whatever, from any King, Prince, or foreign State. 

Of the first part of this clause, little needs be said : 
For the United States to grant titles of nobility to any 
persons, thus establishing distinctions of rank, would be 
directly opposed to the spirit and genius of our peo- 
ple and to the governmental forms established by the 
Constitution. 

The propriety of the second part of this clause is also 
obvious ; the object is to prevent any person in the ser- 
vice of the United States from being biased or influenced 
in the discharge of his official duty by any foreign power. 
It frequently happens that another government desires to 
make a present to an officer of the United States, or to 
confer some honor upon him, in recognition of some 
service he has rendered to it or to its subjects. In such 
case, the consent of Congress must be obtained before 
the proffered gift or honor can be accepted ; this ordi- 
narily is granted without opposition. 

An amendment was proposed in 1803, extending this 
prohibition to all citizens of the United States ; the 
reasons, however, that support the restriction in regard to 
officers in the, public service would hardly apply in the 
case of private persons, and fortunately, perhaps, this 
somewhat sweeping and arbitrary proposition was never 
made a part of the Constitution. 



266 OUR SYSTEM OF GOVERNMENT. 

Sec. io. 1 No State shall enter into any Treaty, Alli- 
ance, or Confederation; grant Letters of Marque and 
Reprisal; coin Money; emit Bills of Credit; make any 
Thing but gold and silver Coin a Tender in Payment of 
Debts; pass any Bill of Attainder, ex post facto Law, or 
Law impairing the Obligation of Contracts, or grant any 
Title of Nobility. 

This section consists of restrictions expressly imposed 
on the different State governments. Provisions of a simi- 
lar nature formed a part of the Articles of Confederation, 
and, by preventing the States from exercising powers 
whose results must have been to increase the mutual 
jealousies and the separative tendencies existing among 
them, constituted about the only guarantee of union that 
this defective and inefficient instrument contained. 

The power to enter into treaties, alliances, and confeder- 
ations, must be an exclusive attribute of the Government 
of the Nation ; if exercised by the individual States 
whether in regard to foreign nations or to one another, the 
results would be entanglements, quarrels, and sooner or 
later, destruction of the Union. Although the States are 
sovereign and final in regard to those matters lying within 
their respective spheres of action, the Constitution makes 
the Government of the United States the Government of 
the Nation ; hence, the only one that can enter into rela- 
tions with foreign governments and be ofljcially known 
or recognized by them. 

The power to grant letters of marque and reprisal r is 



J See p. 233. 



THE CONSTITUTION. 267 

also wisely denied to the individual States. Undoubtedly, 
had this prohibition not been expressly made, it would 
be regarded as existing by necessary implication. To 
allow the States to commission privateers would be to 
vest in them a power of a most delicate and dangerous 
nature with no corresponding responsibility. The bur- 
dens and responsibilities of war must rest on the whole 
Nation ; hence, in the Government of the Nation must be 
exclusively vested that power whose exercise consists 
essentially in acts of hostility to a foreign nation, liable, 
if not calculated to bring on open strife. 

Money being the standard to which practically all 
commercial transactions are referred, great inconvenience 
and confusion would result if each State had a coinage 
system of its own. The evil of such a condition was in 
part guarded against in the Articles of Confederation by 
the provision, that "the United States, in Congress assem- 
bled, shall have the sole and exclusive right and power of 
regulating the alloy and value of coin struck by their own 
authority, or by that of the respective States." The 
Constitution, by expressly denying to the States the power 
to coin money, directly and finally insures the existence of 
an uniform coinage system throughout the country. 

At a very early period and during the War of the 
Revolution, many attempts were made by the different 
colonies to supply the lack of coin and to meet their own 
necessities by the issue of promises to pay, or " paper 
money." The Continental Congress also saw itself driven 
to adopt the same expedient to meet the expenses 
involved in carrying on the struggle for independence. 

" Such a medium has always been liable to considerable 



268 OUR SYSTEM OF GOVERNMENT. 

fluctuation. Its value is continually changing; and these 
changes, often great and sudden, expose individuals to 
immense loss, are the sources of ruinous speculations, 
and destroy all confidence between man and man. To 
cut up this mischief by the roots, a mischief which was 
felt through the United States, and which deeply affected 
the interest and prosperity of all, the people declared, in 
their Constitution, that no State should emit bills of 
credit. 1 ... In its enlarged, and perhaps, its literal 
sense, the term 'bill of credit' may comprehend any 
instrument by which a State engages to pay money at a 
future day ; thus including a certificate given for money 
borrowed, \_i. e., a bond]. But the language of the Con- 
stitution itself, and the mischief to be prevented, which 
we know from the history of our country, equally limit 
the interpretation of the terms. The word 'emit' is 
never employed in describing those contracts by which a 
State binds itself to pay money at a future day for ser- 
vices actually received, or for money borrowed for present 
use ; nor are instruments executed for such purposes, in 
common language, denominated ' bills of credit.' To 
emit bills of credit conveys to the mind the idea of issu- 
ing paper intended to circulate through the community, 
for its ordinary purposes, as money, which paper is 
redeemable at a future day." : 

Though the State itself cannot issue notes designed 
to circulate as money, it can charter banks which may 
exercise this power. The notes of such banks are notes 
of a private rather than of a public nature, and their 



] Craig vs. Missouri, 4 Peters. 411. 



THE CONSTITUTION. 269 

value depends entirely on the ability of the bank issuing 
them to redeem them in real money. State bank notes 
formed a large part of the circulating medium of the 
country from a few years prior to the adoption of the 
Constitution until 1863, when the National Government 
levied an annual tax of ten per cent, upon such issues, 
in order to drive them out of circulation and make room 
for National bank notes ; the payment of the latter is 
guaranteed by the United States which is protected 
against loss arising from such guarantee by National 
bonds bought by the different banks and deposited with 
the Treasurer of the United States at Washington. 

The power to determine what constitutes legal tender 
currency seems to vest exclusively in Congress as an 
incident of its exclusive power " to coin money and 
regulate the value thereof," and had the prohibition upon 
the States in this respect not been made, the power to 
declare what constitutes legal tender would probably 
never have been claimed by any State, or if claimed, not 
allowed by the courts. 

The question has arisen, whether, if Congress should 
restrict the quality of legal tender to gold coin, a State 
could extend it to silver coin, provided the latter were 
minted, and thus nullify within its own borders the 
National legislation. A fair construction of the Consti- 
tution as a whole, seems to place the entire and exclusive 
power in this regard in the hands of Congress, by which, 
in fact, it has always been exercised. The object of mak- 
ing this express restriction upon the individual States, 
was, as is the case of several others, to settle the whole 
matter beyond a doubt. The people of the country had 



270 OUR SYSTEM OF GOVERNMENT. 

suffered much from the financial vagaries of the different 
local governments, and the intent of this and the preced- 
ing provision was to avoid a possible repetition of them 
in the future. 

Under the laws of the United States, gold coin, silver 
dollars, and treasury notes, are legal tender for any 
amount; the minor silver coins are legal tender in one 
payment for five dollars, and the lesser coins for twenty- 
five cents. 

During the period immediately preceding the sitting 
of the Constitutional Convention, there were forces at 
work in many of the States that threatened the very 
existence of social order. The most violent outbreak 
was the Shays' rebellion in Massachusetts, whose pro- 
fessed object was the wiping out of debts and, generally, 
the nullifying of all legal obligations. To avoid the pos- 
sibility of such destructive ideas being realized through 
the control by irresponsible malcontents of any State or 
States, the prohibition that no State should pass any laws 
impairing the obligation of contracts was made a part of 
the Constitution. 

Madison in urging the necessity of this provision said 
in the Federalist: "Very properly, . . . have the 
convention added this constitutional bulwark in favor of 
personal security and private rights ; and I am much 
deceived, if they have not, in so doing, as faithfully con- 
sulted the genuine sentiments as the undoubted interests 
of their constituents. The sober people of America are 
weary of the fluctuating policy which has directed the 
public councils. They have seen with regret and with 
indignation, that sudden changes, and legislative inter- 



THE CONSTITUTION. 2J\ 

ferences in cases affecting personal rights, become jobs in 
the hands of enterprising and influential speculators ; and 
snares to the more industrious and less informed part of 
the community. They have seen, too, that one legisla- 
tive interference is but the first link of a long chain of 
repetitions ; each subsequent interference being naturally 
produced by the effects of the preceding. They very 
rightly infer therefore, that some thorough reform is 
wanting, which will banish speculations on public measures, 
inspire a general prudence and industry, and give a regular 
course to the business of society." 

A contract is a legally binding agreement to do, or not 
to do a certain thing; e.g., to pay a certain sum of 
money, to deliver certain goods or property, or to perform 
a certain piece or amount of work. 

The obligation of a contract is the binding effect given 
to it by law ; hence, the laws existing at the time and 
place of the making of a contract may be regarded as 
entering into and forming a part of it. 

If a State legislature should pass such measures as 
would tend to weaken or destroy the validity of contracts 
made prior to their enactment, they would come within 
the Constitutional prohibition, so far as such prior con- 
tracts are concerned, but would apply to contracts made 
subsequently. Also if the legal means of enforcing a 
contract existing at the time it was made, are afterwards 
rendered essentially less efficacious by legislation, the 
party seeking to enforce the contract has the advantage 
of the remedy as it previously stood. 1 

^ee p. 211. 



272 OUR SYSTEM OF GOVERNMENT. 

Imprisonment for debt, however, has been held to be 
no part of the obligation of a contract, and hence a legis- 
lative act abolishing it applies to debts contracted prior 
as well as subsequent to its passage. 

This prohibition applies to executed as well as to exe- 
cutory contracts, hence, when a contract has been carried 
out, performed, e. g., when lands have been sold and a 
deed given therefor, the legislature cannot set the trans- 
action aside. The grant of lands by a State itself has 
also been held to be an executed contract and not 
subject to revocation. 

A charter granted to a corporation, if given with no 
reservation of a power to amend or annul, either expressed 
in the charter, or in the general law, or in the Constitu- 
tion of the State, is also an executed contract and cannot, 
without the consent of the corporation, be modified by 
legislative action, except as this action may be a legitimate 
exercise of " police power." I 

The charter of a municipal corporation, however, is on 
a different basis; such charters are not of the nature-of 
grants, but rather of constitutions framed by legislative 
authority, determining the manner in which a definite 
part of the general State government shall be organized 
and administered. 

Appointments to office are not of the nature of grants, 
or contracts ; hence, they may be recalled, or modified, 
or the office at any time be abolished, or the salary 
attaching thereto decreased, unless forbidden by the Con- 
stitution of the State, and even then, the Constitution 

J See p. 202. 



THE CONSTITUTION. 273 

may be amended to effect the same results without violat- 
ing the restriction in the National Constitution that no 
State shall pass any laws impairing the obligation of 
contracts. 

The provisions that "No State shall .... pass 
any Bill of Attainder, ex post facto Law, .... or 
grant any Title of Nobility," are similar in their nature to 
the corresponding restrictions imposed on Congress by 
Section 10, Clause 1, and are justified by the reasons 
set forth in that connection. 

2 No State shall, without the Consent of the Congress, lay 
any Imposts or Duties on Imports or Exports, except what 
may be absolutely necessary for executing it's inspection 
Laws; a7id the net Produce of all Duties and Imposts, laid 
by any State on Imports or Exports, shall be for tlie Use of 
the Treasury of the United States; and all such Laws shall 
be subject to the Revision and Controul of the Congress. 

"A duty on imports is not merely a duty on the act of 
importation, but it is a duty on the thing imported. It is 
not, taken in its literal sense, confined to a duty levied 
while the article is entering the country, but extends to a 

duty levied after it has entered the country 

It is sufficient for the present to say, generally, that when 
the importer has so acted on the thing imported, that it 
has become incorporated and mixed up with the mass of 
property in the country, it has, perhaps, lost its distinctive 
character as an import, and has become subject to the 
taxing power of the State ; but while remaining the 
property of the importer, in his warehouse, in the original 

18 



274 0UR SYSTEM OF GOVERNMENT. 

form or package in which it was imported, a tax upon it 
is too plainly a duty on imports to escape the prohibition 
of the Constitution." 1 

The object of the inspection laws of a State is to 
determine the quality and nature of the goods that are 
admitted into its limits, so that if unwholesome or if 
intended to defraud, the sale of them may be prohibited 
through the exercise of its police power, or the people 
may be put on their guard against them. The inspection 
by the State of goods intended for export is for the pur- 
pose of establishing and maintaining a good reputation for 
its products in the other States and in foreign countries, 
and ' of preventing fraud and dishonesty in regard to 
them by its own citizens. 

The term, " inspection laws," as here used, refers to 
inspection of goods, and does not extend to the inspection 
of immigrants to ascertain their fitness or unfitness to 
become residents or citizens of this country; this matter 
is exclusively one of National control, and can be regu- 
lated only by act of Congress. 

Fees paid to cover expenses of inspection would not 
ordinarily affect to any sensible degree commerce with 
foreign nations or among the several States ; but to pre- 
vent any State from practically levying duties on exports 
and imports under the name of inspection fees, the Con- 
stitution provides that the net revenue, derived from this 
source " shall be for the use of the Treasury of the 
United States;" and, as a final safeguard against the 
establishment of vexatious or oppressive inspection sys- 



'Brown vs. Md., 12 Wheat., 419. 



THE CONSTITUTION. 275 

terns by any State, such laws are made " subject to the 
revision and control of Congress." 

*No State shall, without the Consent of Congress, lay 
any duty of Tonnage, keep Troops, or Ships of War in 
time of Peace, enter into any Agreement or Compact with 
another State, or with a foreign Power, or engage in War, 
unless actually invaded, or in such imminent Danger as 
will not admit of delay. 

"Duties of Tonnage" are taxes levied on vessels as 
instruments of commerce. As such taxes are usually 
assessed in proportion to the capacity of a vessel ex- 
pressed in tons, they are generally designated by the 
term employed in the clause under consideration. Any 
tax or duty, however, whether proportioned to capacity 
or not, levied on vessels for the privilege of entering, 
loading, or lying in port, would come within the scope of 
this prohibition. 

The preceding clause prevents the different States from 
direct interference with " commerce with foreign nations 
and among the several States" through the levying of 
export or import duties, this provision prohibits them 
from indirect interference through taxing, as such, one of 
the important means by which this commerce is carried 
on. Probably, had this provision not been expressly 
made, the same restriction would have been held to be a 
necessary result of the power given to Congress by 
Clause 3 of Section 8. But the Convention could by no 
means anticipate or foresee the construction that would 
be thereafter given to the different parts of the Constitu- 



2/6 OUR SYSTEM OF GOVERNMENT. 

tion by the courts, and so wisely placed the matter 
beyond a doubt. 

The term, "Troops," as used in this clause has reference 
to a standing force, an armed body of men maintained 
solely for war or military service, not to the organized 
militia, which is subject to call only when the public 
exigencies demand. 

The maintenance of such a regular army or of ships of 
war by any State would, undoubtedly, by exciting the 
jealous fears of the others bead to similar measures on 
their part, and hence give rise to mutual suspicion and 
hatred that would be liable at any time to break out into 
open strife and thus tend to disrupt the Union. Also the 
possession of such a force by a State might embolden it 
to set aside any enactment of Congress that it saw fit, and 
thus to deny the constitutional supremacy of the National 
Government, if indeed, not to destroy this Government 
altogether. 

The meaning and wisdom of the following restrictions 
of this clause are obvious. If several States entered into 
a compact to which all were not parties, all of them would 
soon be divided into groups associating, probably, accord- 
ing to geographical or sectional relations. Such a ten- 
dency would inevitably increase in force, the lines of 
demarcation between the groups become more and more 
distinctly drawn, and disunion would inevitably follow. 

For a State to enter into a compact with a foreign 
power would be in direct opposition to the entire tenor of 
the Constitution which makes the National Government 
the Government of the Nation, and hence, the only one 
that can enter into international relations. The functions 



THE CONSTITUTION. 277 

of the State governments are purely domestic, or internal, 
and, as such, they should have no dealings with foreign 
powers. 

Before the days of telegraphs and railroads, the sudden 
invasion of a hostile force immediately following upon a 
declaration of war, or without such declaration, might 
have necessitated prompt measures on the part of the 
authorities of a State and compelled them in self defense 
to engage in hostilities. At present, however, there can 
scarcely be a pretext for a State's engaging in war without 
some prior action in regard to it on the part of the 
National Government. Of course, when a war has been 
commenced, whether by formal declaration on the part of 
Congress or by actual hostilities, every State is engaged 
in it, not, however, as an individual sovereignty, but as a 
part of the Nation. The reservation, "without the con- 
sent of Congress," made to all the provisions of this 
clause except the last, was taken, in connection with the 
corresponding restrictions, from the Articles of Confedera- 
tion ; whatever might have been the propriety of the 
phrase there, it certainly seems out of place as a proviso 
on the restrictions of this clause, for so long as the spirit 
of the Constitution is respected, Congress will not give 
consent to the exercise of any of the powers thus condi- 
tionally prohibited, fraught, as such exercise would be, 
with so much danger to the Republic. 

ARTICLE II. 

Sec. 1. x The Executive Power shall be vested in a 
President of. the United States of America. He shall hold 
his Office during the Term of four Years ', and, together 



278 OUR SYSTEM OF GOVERNMENT. 

with the Vice-President, chosen for the same Term, be 
elected, as follows: 

The essential function of the executive branch is to 
give the laws vigor and effect, in other words, to enforce 
them ; hence, the characteristic qualities of this depart- 
ment of the Government should be energy and decision. 
These can best be secured by confiding the chief execu- 
tive power to a single person, on whom also will clearly 
rest all responsibility for abuse of this power. 

It has been urged by many that the English system is 
superior to our own in that the prime minister, the real 
executive, is dependent for his continuance in office upon 
the House of Commons, or upon the people themselves; 
while our President is, in fact, an elective king and when 
once in office is beyond the reach or control of the 
people or their representatives in Congress, except in 
cases of such flagrant abuse of power as would call for 
impeachment. 

Were our Nation a simple consolidated republic, this 
criticism, though by no means conclusive as to the 
superiority of the English system, would have some 
weight, for so far as concerns administrative authority the 
constitution of England is more democratic than is that 
of the United States ; but under our dual system the 
great mass of those powers that would be most liable to 
executive abuse is left to the governments of the different 
States, whose nearness to the people constitutes an efficient 
safeguard against tyranny and oppression. 

In matters pertaining to international relations and 
intercourse, which must in the main be confided to the 



THE CONSTITUTION. 279 

executive authority, the National Government is the only 
one known to foreign powers, the only one with which 
they come in contact; here, to effect the best results, 
certain lines of policy must be laid down and firmly and 
consistently carried out, even though for the time being 
they meet with the disapproval of the people, who may 
not appreciate or understand the true condition of affairs. 
In dealing with other nations vacillation or precipitation 
would be disastrous, and to dangers arising from such 
sources our foreign policy would be continually exposed 
if our Chief Executive were directly and immediately 
dependent on the people or their representatives for his 
continuance in office. 

Within the comparatively narrow range in which the 
people of this country are directly affected by the power 
vested in the President, and limited as this power is by 
so many checks and balances, we can regard the " kingly " 
feature of the presidential office as one seen and felt — 
most advantageously for the Republic — by foreign 
nations, while to ourselves, as citizens, it is scarcely 
perceptible. 

The term for which the President should be chosen 
was a subject of much discussion and difference of 
opinion ; seven years with a re-election prohibited was 
first settled upon. Afterwards, the prohibition was re- 
pealed from a feeling that it might work injuriously by 
excluding from the high office men who had proved their 
especial fitness for it. In consequence of the removal of 
this restriction the proposed presidential term was then 
reduced from seven to four years. 

Although no provision was made in the Constitution in 



280 OUR SYSTEM OF GOVERNMENT. 

regard to the question of re-eligibility, the precedent 
established by Washington of declining on grounds of 
public policy an election for a third term has been so 
uniformly observed, that probably no person will ever be 
chosen for the office of President more than twice. 

2 Each State shall appoint, in such Manner as the Legis- 
lature thereof may direct, a Number of Electors, equal to 
the whole Number of Senators and Representatives to 
which the State may be entitled in the Congress; bid no 
Senator or Representative, or Person holding an Office of 
Trust or Profit under the United States, shall be appointed 
an Elector. 

The majority of the Constitutional Convention were at 
first in favor of the election of the President by Congress, 
and but few of the members favored a direct choice by 
the people. 

It was recognized, however, that the power to elect the 
President, if vested in the legislative branch, would give 
to it great power and influence over the Executive and 
thus open a way for intrigue and corruption ; hence the 
scheme of a special body for this purpose, corresponding 
to Congress in number and, to a certain extent, in repre- 
sentative character, was finally devised and adopted. 

The purpose of the Convention was that the electors 
provided for in this clause should exercise their inde- 
pendent judgment in the choice of the President and 
Vice President; but this device to avoid the excitement 
and other evils of an election by popular vote of the 
highest officer of the Republic has failed almost from the 



THE CONSTITUTION. 28 I 

first to effect the result desired. Prior to the fourth 
election in 1800, nominations were not definitely made 
before the electors were chosen in the different States, 
although it was well understood for whom they were 
expected to vote. In that election, and in every election 
since, candidates for President and Vice President have 
been named by nominating caucuses or conventions 
representing the different political parties, and their per- 
sonal and political fitness assailed and defended long 
before the electors have been chosen ; when this choice 
has been made, the presidential election has been to all 
intents and purposes settled ; for each elector holds him- 
self bound to vote for the candidates of the party he 
represents and by which he has been elected. 

It has been strongly urged that as these electoral col- 
leges have become in practice but mere registering 
machines, they should be dispensed with by an amend- 
ment to the Constitution ; but, on the other hand, the 
system in itself is simple and inexpensive, and it is ques- 
tionable whether any other mode of registering the vote 
of a State would be as direct and in every way as satis- 
factory ; and, although since 1800 every electoral vote 
has been cast in obedience to party behests, and hence 
the President and Vice President have been in fact directly 
voted for by the people, it is conceivable that some great 
emergency may arise in which this "check" may prove 
to be of the greatest utility. 

In the election of the President, as in the Constitution 
of Congress, the dual nature of the general government 
is recognized ; the electors corresponding to the Senators 
representing the States as political organisms, and those 



282 OUR SYSTEM OF GOVERNMENT. 

corresponding to the representatives, the people as a 
Nation. 

The manner of choosing the electors the Constitution 
leaves to the legislatures of the respective States to 
determine. At first, this choice was made by popular 
vote only in Pennsylvania, Maryland, and Virginia; in 
the other States, the electors were chosen by the legisla- 
tures. One after another, however, adopted the system 
of election by the people until in 1832 South Carolina 
alone held to that of legislative appointment, and this 
State finally adopted the more democratic system in 1868. 

In several of the States also, the electors were chosen 
by districts identical with those from which the members 
of the House of Representatives were elected ; in such 
cases, the electors corresponding to the senators were 
voted for as " electors-at-large " in all the districts. With 
the exception of its renewal in Michigan in 1892 for a 
single election, the district system has been abandoned 
since 1832, and the people of every State have voted for 
all its electors on one ticket. 

The final provision in this clause is intended to prevent 
direct control or influence by the legislative branch in the 
election of the President, and to avoid so far as possible 
anything in the nature of official cabal or intrigue. 

[ 3 The Electors shall meet in their respective States, and vote by 
Ballot for two Persons, of whom one at least shall not be an Inhabit- 
ant of the same State with themselves. And they shall make a List 
of all the Persons voted for, and of the Number of Votes for each; 
which List they shall sign and certify, and transmit sealed to the Seat 
of Government of the United States, directed to the President of the 
Senate. The President of the Senate shall, in the Presence of the 
Senate and House of Representatives, open all the Certificates, and 



THE CONSTITUTION. 283 

the Votes shall then be counted. The Person having the greatest 
number of Votes shall be the President, if such Number be a Majority 
of the whole Number of Electors appointed; and if there be more than 
one who have such a Majority, and have an equal Number of Votes, 
then the House of Representatives shall immediately chuse, by Ballot 
one of them for President; and if no Person have a Majority, then 
from the five highest on the List, the said House shall in like manner 
chuse the President. But in chusing the President, the Votes shall 
be taken by States, the Representation from each State having one 
vote; A quorum for this Purpose shall consist of a Member or 
Members from two-thirds of the States, and a Majority of all the 
States shall be necessary to a Choice. In every Case, after the Choice 
of the President, the Person having the greatest Number of Votes of 
the Electors shall be the Vice President. But if there should remain 
two or more who have equal votes, the Senate shall chuse from them 
by Ballot the Vice President.] 

By this clause each elector was to cast ballots for two 
persons without designating which he voted for as Presi- 
dent or as Vice President, and the one that received the 
greatest number of votes, provided this number was 
a majority of the number of the electors, was to be 
President. 

In the first three elections no difficulty was met under 
this arrangement, but in the fourth, its clumsiness and 
inefficiency manifested themselves. Jefferson and Burr, 
who were the republican candidates for the Presidency 
and Vice-Presidency respectively, received the same 
number of electoral votes, this number being also a 
majority of the whole number of electors. The choice 
of the House of Representatives in which the federalists 
controlled the votes of just one half of the States, was 
thus limited to these two, and for a long time, from dis- 
like of Jefferson the federalists voted for Burr as Presi- 
dent, although they knew that he was entirely unfit for 



284 OUR SYSTEM OF GOVERNMENT. 

the high position and was looked upon with suspicion by 
the people generally. Finally, however, in a few federalist 
members patriotism proved stronger than partisanship 
and Jefferson was elected. 

To prevent the recurrence of such a condition of 
affairs, Congress, in December, 1803, proposed the Twelfth 
Amendment, which becoming valid as a part of the Con- 
stitution September 25, 1804, entirely superseded the 
original clause. 

AMENDMENT XII. The electors shall meet in their 
respective states, and vote by ballot for President and Vice- 
President, one of whom, at least, shall not be an inhabitant 
of the same state with themselves; they shall name in their 
ballots the person voted for as President, and in distinct 
ballots the person voted for as Vice-President; and they 
shall make distinct lists of all perso7is voted for as Presi- 
dent, and of all persons voted for as Vice-President, and of 
the number of votes for each, which lists they shall sign 
and certify, and transmit sealed to the seat of the govern- 
ment of the United States, directed to the President of the 
Senate; — The President of the Senate shall, in presence of 
the Senate and House of Representatives, open all the 
certificates and the votes shall then be counted; — The per- 
son having the greatest number of votes for President, shall 
be the President, if such number be a majority of the whole 
number of Electors appointed; and if no person have such 
majority, then from the persons having the highest numbers 
not exceeding three on the list of those voted for as Presi- 
dent, the House of Representatives shall choose immediately, 
by ballot, the President. But in choosing the President, 



THE CONSTITUTION. 285 

the votes shall be taken by states, the representation from 
each state having one vote; a quorum for this purpose shall 
consist of a member or members from two- thirds of the 
states, and a majority of all the states shall be necessary to 
a choice. And if the House of Representatives shall not 
choose a Presidejit whenever the right of choice shall 
devolve upon them, before the fourth day of March next 
following, then the Vice-President shall act as President, 
as in the case of the death or other constitutional disability 
of the President. The person having the greatest number 
of votes as Vice-President, shall be the Vice-President, if 
such number be a majority of the whole number of Electors 
appointed, and if no person have a majority, then from the 
two highest numbers on the list, the Senate shall choose the 
Vice-President; a quorum for the purpose shall consist of 
two-thirds of the whole number of Senators, and a majority 
of the whole number shall be necessary to a choice. But 
no person constitutionally ineligible to the office of President 
shall be eligible to that of Vice-President of the United 
States. 

By this amendment the electors are required to vote 
specifically, and on separate ballots, for the President and 
for the Vice President ; hence, such a situation as that 
resulting from the election in 1800 cannot again occur. 

The requirement that at least one of the persons for 
whom the ballots are cast shall not be an inhabitant of 
the same State with the electors voting for them, prevents 
a large State from monopolizing these two high official 
positions. The President and Vice President may come 
from one State, but as such an event must be brought 



2 86 OUR SYSTEM OF GOVERNMENT. 

about entirely by the act of other States, it would afford 
no occasion for alarm or jealousy. Unless, however, in 
case of some great public emergency or necessity at 
present scarcely conceivable, the practical result of this 
provision is that the President and Vice President will 
come from different States. 

In order that the safety and due delivery of the lists of 
the persons voted for may be assured, the members of 
each electoral college are required by law to make and 
sign three certificates of all the votes cast by them. One 
of these certificates is to be delivered by a special mem- 
ber appointed by themselves to the President of the 
Senate at the seat of Government before the first Wednes- 
day of the following January ; the second is to be immedi- 
ately forwarded to the same officer by mail ; and the 
third is to be deposited with the Federal judge of that 
district in which the electors assemble. 

The Constitution while prescribing the manner in which 
the electoral votes shall be counted, unfortunately makes 
no provision for determining the rightfulness or legality 
of a certificate whose validity is disputed, or, when two 
or more disagreeing certificates are presented from one 
State, which one shall be accepted. The only declaration 
concerning this all-important matter in the whole instru- 
ment is: — "The President of the Senate shall, in the 
presence of the Senate and House of Representatives, 
open all the certificates, and the votes shall then be 
counted." 

In 1877, two conflicting certificates were returned from 
four different States upon whose votes the result of the 
election of the preceding year depended. The presiding 



THE CONSTITUTION. 287 

officer of the Senate was a republican, and the republican 
party had control of this branch ; the democratic party 
had a majority in the House of Representatives, and 
also would have had a majority on a joint vote of the 
Senate and the House. One party strenuously urged 
that the Constitution vested in the President of the Senate 
the power of determining what votes should be counted, 
and did not restrict him to the merely mechanical func- 
tions of opening the certificates and announcing the 
vote ; the other party as strenuously maintained that the 
Senate and House in joint assembly had full control of 
the matter, and hence the President of the Senate as their 
presiding officer was bound to act in accordance with 
their directions. 

A compromise was finally effected, and a special elec- 
toral commission was created by law for the settlement of 
the matters in dispute. This commission consisted of 
five senators, five representatives, and five judges of the 
Supreme Court of the United States. 

The matters passed upon by this body were so compli- 
cated, and in most respects so lacking in precedent, that 
there was ample room for the widest diversity of opinion, 
and while the fact that each member of the commission 
generally voted on all essential questions according to 
his party affiliations is to be regretted, yet undoubtedly 
every member acted in accordance with his honest con- 
victions, which previous associations and ways of think- 
ing may have had, unconsciously to himself, some part in 
shaping. The calm acquiesence of the defeated party in 
the result furnished a striking example of the conservative 
character of our people, and of that respect for law and 



288' t OUR SYSTEM OF GOVERNMENT. 

order which is the surest guarantee of the perpetuity of 
our free institutions. 

In 1887, after many attempts had been made to frame 
a satisfactory bill, Congress passed a general law for de- 
termining and counting the electoral vote. The following 
is an outline of the most important parts of this meas- 
ure : — If any State shall have provided by law, prior to 
the day set for the choosing of its electors, any method 
for the final determination of the fact of their appoint- 
ment, this determination, if made at least six days prior 
to their meeting shall be held conclusive : No vote or 
votes regularly given from any State, the appointment of 
whose electors has been certified by the executive au- 
thority thereof in accordance with the provisions of this 
act, shall be rejected, but the Senate and House of Rep- 
resentatives may concurrently reject such as they agree 
have not been so regularly given : In the event of two 
or more returns from the same State, that certificate is to 
be accepted which is determined to be the rightful one 
by the proper legal authority of the State in the manner 
above indicated ; if there are two or more officials or 
tribunals each claiming the right to determine what elec- 
tors are appointed, or if there are two or more conflict- 
ing certificates, neither of which has been passed upon 
by such authority, the Senate and the House of Repre- 
sentatives may by concurrent action determine which 
certificate shall be accepted, and if they cannot agree, 
the votes of the electors whose appointment has been 
certified by the executive of the State under the seal 
thereof, shall be counted. 

The checks upon the power of the House of Repre- 



THE CONSTITUTION. 289 

sentatives, in case the selection of the President should 
devolve upon this body, are most admirably devised. 
The limitation of their choice to the three who have 
received the highest number of electoral votes compels 
them to select a man whose merits and demerits have 
already been fully discussed by the people and who is, at 
least, the choice of a large body of his fellow-citizens ; 
while the fact that the votes are taken by States, although 
in its origin a matter of deference to the smaller common- 
wealths, lessens still more the possibility that the House 
can use this power to control or influence in any way the 
executive branch of the Government. 

There has been but one election of a President, by the 
House of Representatives since the adoption of the 
Twelfth Amendment, that of John Quincy Adams in 1825, 
the electoral vote that year being divided among four 
candidates. 

Under the original clause, the Vice President could not 
be elected until " after the choice of the President," so 
that in case the House of Representatives failed to act 
before the fourth of March, the presidential office would 
become vacant, the amendment, however, provides against 
this danger by declaring that in such a case " the Vice 
President shall act as President." 

The election of the Vice President by the Senate in 
the event of the failure of the electors to make a choice, 
differs from the election of the President in the House in 
that the selection must be from the two highest on the 
list, and in that the voting is by the individual senators 
and not by States. 

Only once have the electors failed to choose a Vice 



290 OUR SYSTEM OF GOVERNMENT. 

President. In 1836, Richard M. Johnson received 147 
electoral votes for this position, just one-half of the entire 
number cast. Mr. Johnson was immediately elected Vice 
President by the Senate. 

The provision concerning the qualifications of the Vice 
President, subject, as this official is, to be called upon at 
any time to act as President, is so obviously just and 
proper that discussion upon it would be superfluous. 

*The Congress may determine the Time of chusing the 
Electors, and the day on which they shall give their Votes; 
which Day shall be the same throughout the United States. 

This clause not only gives to the election of President 
and Vice President a National rather than a State char- 
acter, a thing of no small importance, but it also lessens 
the opportunity for corrupt practices in influencing the 
choice of electors or the casting of their votes. After 
the Constitution had been adopted by the ratification of 
the requisite number of States, the Congress of the Con- 
federacy appointed the first Wednesday in January, 1789, 
as the day for choosing the electors, the first Wednesday 
in February for them to assemble and cast their ballots, 
and the first Wednesday in March, as the day on which 
to inaugurate the new Government. The first Wednes- 
day in March that year was the fourth day of the month ; 
hence, the presidential term and the term for which the 
members of Congress are elected begin on this date. 

In 1792, Congress by law provided that the electors 
should be appointed in each State within thirty-four days 
preceding the first Wednesday in December, every fourth 



THE CONSTITUTION. 29 1 

year, and that they should meet and give their votes on 
the first Wednesday in December at such places as the 
legislatures of their respective States might direct. The 
first Wednesday of the following January was the day set 
for the counting of the electoral votes, and the official 
terms of the President and Vice President were formally 
declared to begin on the fourth of March. 

In 1845, Congress enacted that the electors should be 
chosen on the Tuesday next after the first Monday in 
November, and in 1887, the second Monday of January 
was substituted for the first Wednesday in December, as 
the day on which they should give their votes. 

$No Person except a natural-born Citizen, or a Citizen 
of the United States, at the time of the Adoption of this 
Constitution, shall be eligible to the Office of President; 
neither shall any Person be eligible to that Office who shall 
not have attained to the Age of thirty five Years, and been 
fourteen Years a Resident within the United States. 

The requirement that the President shall be a natural- 
born citizen of the United States is based on the soundest 
considerations of public policy. Conducting, as he does, 
our international intercourse and shaping our foreign 
policy, it is of the highest moment that the Chief Execu- 
tive should have no attachment to any other country, that 
he should regard all other nations with the strictest 
impartiality, and have in mind simply and solely that he 
is an American. 

The exception in favor of those of foreign birth who 
were citizens of the United States at the time of the adop- 



292 OUR SYSTEM OF GOVERNMENT. 

tion of the Constitution, was made as a matter of respect 
to many distinguished men who had taken a prominent 
part in the struggle for independence, and of whom 
several were members of the Constitutional Convention. 

Of the qualification as to age it needs only to be said, 
that to discharge wisely and well the great responsibilities 
resting upon him, the President must have reached that 
age when the mental powers are approaching their 
maturity, and when the conservative character which is 
more generally lacking in younger men has developed. 

The qualification of residence in this country for four- 
teen years means that a person must have had his home 
here for that length of time in order to be eligible for the 
Presidency ; the fact of his traveling in a foreign country, 
or of his living there while engaged in official business 
will not interrupt his residence here ; it would be other- 
wise, however, if he should make his permanent home in 
a foreign land ; in such case he would cease to be a resi- 
dent of the United States, although he might remain a 
citizen of this country. 

6 In Case of the Re?noval of the President from Office ; or 
of his Death, Resignation, or Inability to discharge the 
Powers and Duties of the said Office, the Same shall 
devolve on the Vice President, and the Congress may by 
Law provide for the Case of Removal, Death, Resignation, 
or Inability both of the President and Vice President, 
declaring what Officer shall then act as President, aiid 
such Officer shall act accordingly, until the: disability be 
removed, or a President shall be elected. 



THE CONSTITUTION. 293 

A question of very grave moment has been raised, 
whether in the event of " the Removal of the President 
from Office, or of his Death, Resignation, or Inability to 
discharge the Powers and Duties of said Office," it is 
"the Powers and Duties" of the office that devolve on the 
Vice President, or the office itself that so devolves : in 
other words, whether, in either of these contingencies, 
the Vice President becomes President or only acts as 
President. 

In case of the removal, death, or resignation of the 
President, the question is of no direct importance, for in 
either of these events the Vice President assumes the full 
control of the powers and duties of the presidential office 
and retains it until the term for which he was elected 
expires. But in case of what might be a temporary in- 
ability of the President to discharge the powers and duties 
of his office, such, for instance, as might arise from illness, 
insanity, or enforced absence, the situation becomes diffi- 
cult. According to one view, presented and maintained 
by high authority, the Vice President called under such 
circumstances to exercise the functions of the Chief 
Executive, becomes actually President, while the person 
elected to that high position is completely dispossessed. 
It scarcely seems a logical or a practical necessity, how- 
ever, to give such a harsh construction to the Constitu- 
tion, and certainly the safeguards with which this instru- 
ment seeks to secure the selection of a suitable person for 
President seems to indicate that this selection should be 
defeated or nullified only when it is physically unavoid- 
able, or imperatively demanded by the public welfare. 

Again, who is to determine when the inability of the 



294 °UR SYSTEM OF GOVERNMENT. 

President to discharge the powers and duties of his office 
exists, and when it ceases? 

In England, this power has been exercised by Parlia- 
ment, but the relation of the Parliament to the executive 
power in that country is so essentially different from the 
relation existing between our Congress and the President, 
that no argument can be drawn from this source. In the 
Twelfth Amendment it is provided that in case the Presi- 
dent is not elected either by the electors or by the House 
of Representatives, " the Vice President shall act as Presi- 
dent, as in the case of the death or other constitutional 
disability of the President." The provision in the present 
clause means, then, that in the contingencies set forth the 
Vice President " shall act as President." The Constitu- 
tion here requires the Vice President to do under certain 
circumstances a certain thing, and it certainly seems 
reasonable, if not indeed necessary, that in the perform- 
ance of this, as in the performance of his other official 
duties, he must determine for himself and upon his own 
responsibility when he is called upon to act. 

If this view be correct, undoubtedly there would be 
danger that an ambitious and intriguing Vice President 
might attempt to oust the President from office by wrong- 
fully insisting that he was incapable of discharging the 
powers and duties pertaining to it; but here again, 
the safeguards provided by the Constitution would be 
efficacious. 

The resistance of the President himself to such an 
attempted usurpation would ordinarily be an effective bar 
to its success ; the recognition and support of Congress 
would be indispensable for its maintenance, even if it 



THE CONSTITUTION. 295 

were successful in the first instance ; impeachment might 
remove the offender from office altogether; while, even 
more effective than all these, the indignation of the peo- 
ple would overwhelm the usurper and his fellow-conspir- 
ators with defeat and disgrace. 

Of course, all these safeguards may fail, but in fact, it 
is the sense of responsibility and the watchfulness of the 
people, and the fidelity of those who serve them, that 
give to this, as to every other provision of the Constitu- 
tion, its strength and effectiveness. Unless in case of 
some great emergency, no Vice President will, in all 
probability, ever venture to assume the functions of the 
presidential office unless the inability of the President to 
discharge its powers and duties is as clearly established 
and as generally accepted as would be the simple fact of 
his death, resignation, or removal from office. 

In case of the inability of both the President and Vice 
President, the clause of the Constitution under consid- 
eration undoubtedly vests in Congress the power of 
determining when it exists and when it ceases. 

In the act for regulating the presidential elections 
passed in 1792, Congress provided that in case of the 
removal, death, resignation, or inability of both the Presi- 
dent and the Vice President, the President pro tempore of 
the Senate, and if there should be none, the Speaker of 
the House of Representatives should act as President 
until the disability should be removed or a President 
elected. Subsequent sections of the same act provided 
for the appointing of electors and the electing of a 
President and a Vice President in case of vacancies 
existing in both offices. 



296 OUR SYSTEM OF GOVERNMENT. 

These provisions remained in force until 1886, when 
they were repealed, and it was enacted that in case of the 
removal, death, resignation, or inability of both the Presi- 
dent and Vice President, until such inability should be 
removed or a President elected, the powers and duties of 
the presidential office should devolve upon a member of 
the cabinet, the order of succession being as follows: — 
The Secretary of State ; the Secretary of the Treasury ; 
the Secretary of War ; the Attorney General ; the Post- 
master General ; the Secretary of the Navy ; and the 
Secretary of the Interior ; the Secretary of Agriculture 
was afterwards added to this list. 

The act of 1886 also provides that when the powers 
and duties of the office of President devolve upon either 
of these officers, if Congress is not in session, and if it 
would not meet in accordance with law within twenty 
days thereafter, it is his duty to issue a proclamation con- 
vening Congress in extra session, giving twenty days 
notice of the time of meeting. Another provision ex- 
cludes from the order of succession as above set forth, 
such officers as have not been appointed by and with the 
advice and consent of the Senate, such as are not eligible 
to the office of President under the Constitution, and 
such as are under impeachment. 

A vacancy in the office of President has occurred four 
times, in each case caused by death. President Harrison 
died April 4, 1841, and was succeeded by Vice President 
Tyler; President Taylor died July 9, 1 850, and was suc- 
ceeded by Vice President Fillmore ; President Lincoln 
died April 14, 1865, and was succeeded by Vice President 
Johnson; President Garfield died September 19, 1881, 



THE CONSTITUTION. 297 

and was succeeded by Vice President Arthur. There has 
been no instance of the office of the President and of the 
Vice President both becoming vacant. 

7 The President shall, at stated Times, receive for his 
Services, a Compe7tsatio?t, which shall neither be e7icreased 
nor diminished during the Period for which he shall have 
been elected, and he shall not receive within that Period, 
any other Emolument from the United States, or a?iy of 
them. 

" It is impossible to imagine any provision which would 
have been more eligible than this. The legislature, on 
the appointment of a president, is once for all to declare 
what shall be the compensation for his services during 
the time for which he shall have been elected. This 
done they will have no power to alter it, either by 
increase or diminution, till a new period of service by a 
new election commences. They can neither weaken his 
fortitude by operating upon his necessities, nor corrupt 
his integrity by appealing to his avarice. Neither the 
union, nor any of its members, will be at liberty to give, 
nor will he be at liberty to receive any other emolument 
than that which may have been determined by the first 
act. He can of course have no pecuniary inducement to 
renounce or desert the independence intended for him by 
the constitution." l 

In 1789, Congress fixed the salary of the first President 
at twenty-five thousand dollars a year, and that of the 



'Federalist, No. 73. 



298 OUR SYSTEM OF GOVERNMENT. 

first Vice President at five thousand, and in 1793 this rate 
of compensation was made permanent by general law. 
In 1853, the salary of the Vice President was increased 
to eight thousand dollars, and in 1873, that of the Presi- 
dent to fifty thousand and that of the Vice President to 
ten thousand ; the latter was, however, reduced to eight 
thousand in the following year. A furnished mansion 
is also supplied for the use of the President, who is also 
authorized to employ for his official household at the 
expense of the Government, two secretaries, two clerks, a 
messenger, and a steward to have custody of the public 
property in the " White House." 

^Before he enter on the Execution of his Office he shall 
take the following Oath or Affirmation: — "/ do solemnly 
swear (or affirm) that I will faithfully execute the Office 
of Preside7it of the United States, and will, to the best of 
my Ability, preserve, protect, and defend the Constitution 
of the United States." 

This oath is ordinarily administered by the Chief Justice 
of the Supreme Court at the inauguration ceremonies on 
the fourth of March ; it may, however, be taken before a 
judge of any Federal court. 

If the President-elect has religious or conscientious 
scruples in regard to taking the oath, the Constitution 
allows him to make affirmation to the same effect. 

This oath or affirmation is a solemn pledge of fidelity 
to official duty, strengthened by an appeal to the most 
sacred and binding sanctions. Unlike the oaths or affir- 
mations taken by witnesses in judicial proceedings, the 



THE CONSTITUTION. 299 

oaths of public officers by which they solemnly bind 
themselves to the faithful performance of their official 
duties, are, aside from the question of impeachment, 
simply binding upon the conscience, and however much 
moral turpitude the violation of them may involve, it 
does not render a party so offending liable to punishment 
for the crime of perjury. 

Sec. 2. ^ The President shall be Commander in Chief of 
the Army and Navy of the United States, and of the Militia 
of the several States, when called into the actual Service of 
the United States; he may require the Opinion, in writing, 
of the principal Officer in each of the Executive Depart- 
ments, upon any Subject relating to the Duties of their 
respective Offices, and he shall have Power to grant 
Reprieves and Pardons for Offences against the United 
States, except in cases of Impeachment. 

It is the official duty of the Chief Executive to see that 
the laws of the United States are faithfully enforced, and 
power commensurate with this great responsibility must 
be placed in his hands. 

If the execution of these laws is resisted by force, or if 
the functions of the National Government are violently 
interrupted, the President must be in position to over- 
come force by force, if necessary, otherwise dissolution of 
the Union, or anarchy, or both, will result. 

The imperative necessity for the control of the army 
and navy by the President has been made manifest by the 
Civil War, and by several other attempts of lesser magni- 
tude to defeat the orderly administration of the laws. 



300 OUR SYSTEM OF GOVERNMENT. 

The "whiskey insurrection" in Pennsylvania in 1794, 
and the "nullification" movement in South Carolina in 
1832, both had for their professed object resistance to the 
revenue laws of the United States, and both gave way 
before the preparations of the Executive to crush them 
by military force ; and the violent interruption of the 
mails and of interstate commerce by armed mobs in 
Chicago at the time of the great railroad strike in 1894, 
had to be met and sternly checked through the use by 
the President of this final resource. 

For the successful prosecution of war, there must be a 
unity of design and a singleness and energy of execution 
that can be secured only by placing the general and ulti- 
mate direction of it in the hands of a single person. Of 
course, it could but rarely happen that the President 
would take command in the field or assume an active 
part in the direct control of military operations ; his main 
functions as commander-in-chief are to see that his sub- 
ordinates in active service perform their duties faithfully 
and effectively, and that the different plans and campaigns 
are so co-ordinated as to best attain the results desired. 

The Constitution does not provide for a council whose 
duty it is to advise the President on matters concerning 
the execution of his office ; in fact, the Constitutional 
Convention rejected a proposition to this effect and ac- 
cepted in lieu of it the one we are now considering; — 
" he may require the Opinion, in writing, of the principal 
Officer in each of the executive Departments, upon any 
subject relating to the Duties of their respective Offices." 
The different executive departments are created by law, 
and, from the first, in virtue of the power here given to 



THE CONSTITUTION. 3OI 

the President, their principal officers, or heads, have 
acted and been regarded as his council, although the 
existence of such a body was disapproved by the Con- 
vention, and, indeed, has never been directly provided for 
by Congress. 

In 1789, there were four executive departments organ- 
ized with the following officers at their respective heads : 
— the Secretary of State, the Secretary of the Treasury, 
the Secretary of War, the Attorney General ; to these 
were added in 1798, the Secretary of the Navy, in 1829, 
the Postmaster General, in 1849, the Secretary of the 
Interior, and in 1889, the Secretary of Agriculture. 

The Department of State has to do with foreign rela- 
tions, the negotiating of treaties, the diplomatic and con- 
sular service, etc. ; it also has charge of the publishing 
of the statutes and treaties of the United States, and of 
the proclamations of the President. 

The Attorney General is the chief standing counsel 
and public prosecutor on behalf of the United States ; 
he has, also, general control of the United States district 
attorneys in the subordinate courts and is the legal adviser 
of the President. 

The more important duties of the Secretary of the 
Interior are the management of the public lands, the 
conduct of Indian affairs, and the general control of the 
patent and pension offices and of the Bureau of Educa- 
tion. The official titles of the other members of the 
"Cabinet," designate clearly enough for our present pur- 
pose their respective duties. 

To a great and increasing extent the President is obliged 
to depend upon the advice and information given him by 



3<D2 OUR SYSTEM OF GOVERNMENT. 

these heads of departments in shaping the policy of his 
administration and in disposing of many important mat- 
ters, but the responsibility to the people rests upon him 
alone. 

If the law, in itself and in its application, were always 
just and unerring, there would be no need to interrupt its 
due course by reprieve or pardon, but as legislatures and 
courts are fallible, it is both politic and wise that there 
should exist some means for avoiding, so far as possible, 
the evil consequences resulting from legal injustice, im- 
policy, or mistakes. 

A reprieve is a suspension of the execution of a sen- 
tence, and when granted by the executive authority is 
ordinarily for the purpose of giving a person condemned 
to death opportunity to show some reason why the decree 
of the court should not be carried into effect. 

A pardon exempts a person from the legal punishment 
attaching to the crime which he has committed, or of 
which, though in fact innocent, he has been duly con- 
victed by process of law. 

"The Constitution provides that the President shall 
have power to grant reprieves and pardons for offences 
against the United States, except in cases of impeach- 
ment. The power thus conferred is unlimited, with the 
exception stated. It extends to every offence known to 
law, and maybe exercised at anytime after its commission, 
either before legal proceedings are taken, or during their 
pendency, or after conviction and judgment. This power 
of the President is not subject to any legislative control. 
Congress can neither limit the effect of his pardon, nor 
exclude from it any class of offenders. The benign pre- 



THE CONSTITUTION. 303 

rogative of mercy reposed in him cannot be fettered by 
any legislative restrictions. , when the pardon 

is full, it releases the punishment and blots out the exist- 
ence of the guilt, so that in the eyes of the law the 
offender is as innocent as if he had never committed any 
offence. If granted before conviction, it prevents any of 
the penalties and disabilities, -and restores him to all his 
civil rights ; it makes him, as it were, a new man, and 
gives him a new credit and capacity. There is this limi- 
tation to its operation : it does not restore offices for- 
feited, or property or interests vested in others in conse- 
quence of the conviction and judgment." * 

We may also add, that a pardon will not restore what 
has been paid as a fine ; the money having become a part 
of the public funds, it can only be returned by a special 
act of the legislative body, which also must be looked to 
for any indemnity for unjust imprisonment. 

A pardon may be made on conditions, such, for in- 
stance, as that of the offender's leaving the country ; or 
it may be in the nature of a commutation of punishment, 
i. e. y the substitution of a milder penalty for the one 
decreed by the court; such pardons, and, in fact, any 
pardon, must be accepted before becoming operative. 

A pardon extended to a class of persons after they have 
committed an offense against the government but before 
they have been tried for it, is termed an amnesty. 

In 1862, Congress passed a resolution authorizing the 
President to offer amnesty to those in insurrection against 
the National authority ; proclamations to this effect were 



'Ex parte Garland, 4 Wall., 333. 



304 OUR SYSTEM OF GOVERNMENT. 

issued by President Lincoln and President Johnson, and 
by the latter, after Congress in 1867 had withdrawn its 
permission. In the decision above quoted from, however, 
the Supreme Court declared that the action of Congress 
both in the granting of this authority to the President and 
in the withdrawing of it was without effect, the pardoning 
power being exclusively vested in the Executive. 

To leave in the hands of the President the power to 
pardon in case of impeachments would enable him to 
screen from punishment or investigation guilty officials 
with whom he might be a fellow-conspirator or in whose 
evil-doings he might be an accomplice. From whatever 
standpoint it is regarded, this exception is most just and 
politic. 

It is also questionable whether executive clemency 
could be extended to persons imprisoned for contempt of 
court, or by order of either House of Congress ; cer- 
tainly if the President possesses such a power, it might 
be so used as to seriously interfere with the independence 
and dignity of these two co-ordinate branches of the 
Government. 

As indicated by the words of the Constitution, the 
power of reprieve and pardon vested in the President, 
extends only to those who have committed offenses against 
the National laws or the National authority ; as affecting 
offenders against the different States, a similar power with 
varying limitations is vested in their respective executive 
authorities. 

2 He shall have Power, by and with the Advice and Con- 
sent of the Senate, to make Treaties, provided two-thirds of 



THE CONSTITUTION. 305 

the Senators present concur; and he shall nominate, and 
by and with the Advice and Consent of the Senate, shall 
appoint Ambassadors, other Public Ministers and Consuls, 
Judges of the supreme Court, and all other Officers of the 
United States, whose Appointments are not herein otherwise 
provided for, and which shall be established by Law; but 
the Congress may by Law vest the Appointment of such 
inferior Officers, as they think proper, in the President 
alo7ie, in the Courts of Law, or in the Heads of Depart- 
ments. 

In the negotiation of treaties, or agreements with for- 
eign nations, singleness of purpose and unity and readi- 
ness of action are in the highest degree desirable. Emer- 
gencies frequently arise in international affairs or in the 
internal condition of foreign states which, if immediately 
and skilfully taken advantage of, may result in great bene- 
fit to this country ; a lack of ability to thus act quickly 
and unhesitatingly would place us in a position of perma- 
nent disadvantage. 

Hence, a numerous body like the House of Represen- 
tatives or the Senate, by the hesitation and uncertainty 
of its action, resulting from diversity of opinion, would 
be quite unfit to conduct the delicate business of diplo- 
matic intercourse, which requires the right thing to be 
done at just the right time. 

But while it is of the greatest advantage to have the 
power of negotiating international agreements confided 
to the President, obviously, to grant to him alone the 
power to conclude them would be hazardous in the ex- 
treme, for often treaties, such for instance as those which 
20 



306 OUR SYSTEM OF GOVERNMENT. 

added to the National domain the territory lying west of 
the Mississippi, may more vitally affect the National life 
and progress than could any enactment of Congress. 
Hence, the propriety of requiring the concurrence of two 
thirds of the members of the Senate present in the ratifi- 
cation of a treaty submitted by the President before it 
becomes binding on the Nation. 

In practice, "the advice and consent of the Senate" 
means the consent of this body, both in regard to treaties 
and to appointments to office. A treaty is first negotiated 
under the direction of the President through the Secretary 
of State with the representatives of the foreign power and 
is then submitted to the Senate ; if ratified, it becomes a 
part of " the law of the land," and has the same effect as 
a duly enacted statute upon prior statute or treaty pro- 
visions ; i. e. } it repeals those with which it conflicts. 

The question has arisen several times, whether the con- 
sent of the House of Representatives is necessary for 
the ratification of a treaty involving the payment of 
money; the House has generally claimed the right to 
refuse the appropriation if for any good reason it see fit 
to do so ; doubtless, however, strong grounds for its 
action would exist before this body would refuse to give 
effect to a treaty after it had been duly ratified by the 
other branch of Congress. 

The constitutional provision vesting in the President the 
power of appointment to office has been severely criti- 
cised, but it is doubtful whether any other plan could be 
suggested that is less open to objections. To give this 
power to Congress or either branch of it, would probably 
result in abuses in our civil service greater than those now 



THE CONSTITUTION. 307 

existing, while if it were vested in a special commission, 
in all likelihood this body would be moved as much by 
personal and party preferences as the President himself, 
while unlike him its members would not individually feel 
a direct responsibility to the people. 

Under the present system, "the blame of a bad nomi- 
nation would fall on the President singly and absolutely. 
The censure of rejecting a good one would lie entirely at 
the door of the Senate ; aggravated by the consideration 
of their having counteracted the good intentions of the 
Executive. If an ill appointment should be made, the 
Executive for nominating, and the Senate for approving, 
would participate, though in different degrees, in the 
opprobrium and disgrace." : 

The principle of executive appointment, especially as 
affecting the more important offices, is both logical and 
necessary ; to carry out successfully his administrative 
policy the President must have thorough sympathy and 
co-operation from those to whom he must look for assist- 
ance and advice, and upon whom he must depend for the 
faithful and efficient execution of the manifold duties that 
devolve on the executive branch of the Government. 

Undoubtedly the power of appointment to office, by 
whatever authority it may be exercised, is especially liable 
to abuse, but here the remedy must be found in the peo- 
ple themselves ; when they appreciate the fact that abuses 
exist and stand ready to condemn them and their authors, 
abuses will come to an end. 

Whether the removal of an officer requires the consent 



'Federalist, No. 77 



308 OUR SYSTEM OF GOVERNMENT. 

of the Senate or may be effected by the President alone, 
is a question not yet definitely settled, although it has 
been the subject of discussion and controversy since the 
first year that the Constitution went into effect. 

Hamilton in the Federalist declared that the consent of 
the Senate would be necessary to displace as well as to 
appoint. In 1789, in the act organizing the present 
Department of State, it was provided that the power of 
removing its Secretary should be in the hands of the 
President alone ; this provision which practically had the 
effect of a resolution declaring the sense of Congress as 
to the executive power of removal, passed the House of 
Representatives by a small majority, and the Senate by 
the casting vote of the Vice President. 

The different Presidents continued to exercise the 
power of removal from office without the consent of the 
Senate until 1867, although their right to do so was often 
denied by the latter ; in this year, however, as a result of 
the strained relations between President Johnson and 
Congress, a bill to regulate the tenure of civil offices 
became a law notwithstanding the executive veto. This 
bill denied to the President the right to remove an officer 
without the consent of the Senate. After the expiration 
of President Johnson's term, this law became practically 
a dead letter, and it was finally repealed in 1887. 

It is not possible to make in the Constitution a definite 
distinction between the " inferior officers " for whose ap- 
pointment Congress may provide, and those whom the 
President has the right and power to select. Within cer- 
tain limits this question is left for Congress itself to deter- 
mine by law. If, however, Congress should pass these 



THE CONSTITUTION. 309 

limits and trespass upon the rightful authority of the 
Executive, this fact could only be determined through 
the courts. 

Congress has vested in the heads of the different 
departments quite extensive powers in regard to the ap- 
pointment of their subordinate officials. The Postmaster 
General, who has the power to appoint and remove all 
postmasters whose pay is less than a thousand dollars a 
year, has an especially large amount of " Government 
patronage " at his disposal, and too frequently it is used 
to further party rather than public interests. 

In 1853, an act was passed requiring that a candidate 
for a clerkship in an executive department at Washington 
should pass a satisfactory examination as a condition of 
his receiving an appointment; but as the examiners pro- 
vided by this act were officials of the department for a 
position in which the person examined was a candidate, 
the law was productive of no substantial good. In 1883, 
another act was passed providing for competitive exami- 
nations in the departments, and in custom-houses and 
post-offices having more than fifty clerks ; a commission 
of three persons of whom not more than two should be 
of the same political party was also established to aid the 
President in enforcing the provisions of the act, and to 
investigate and report upon all matters pertaining to the 
efficiency and execution of the law. 

The scope of this act has been extended from time to 
time, and it is not unlikely that it will soon cover all those 
subordinate executive positions for which a person's fit- 
ness may fairly be determined by his education. 



3IO OUR SYSTEM OF GOVERNMENT. 

$The President shall have Power to fill up all Vacancies 
that may happen during the Recess of the Senate, by grant- 
ing Commissions which shall expire at the End of the 
next Session. 

This clause enables the President to remedy the incon- 
venience that might arise from the continuance of a 
vacancy during the recess of the Senate ; but by making 
appointments for this purpose of a temporary nature, it 
prevents him from using this power to defeat the main 
intent of the provision in the preceding clause which 
requires executive appointments to be submitted to this 
body for confirmation. 

If, after an officer is thus temporarily appointed, the 
Senate on assembling confirms an appointment for this 
place laid before it by the President, this confirmation 
terminates the appointment made during its recess, as, in 
general, the confirmation of an appointee to an office 
removes the one hitherto occupying it ; on the other 
hand, if the Senate refuses or delays to take action, the 
temporary appointee holds over until the end of its ses- 
sion, and may then, at the President's discretion, be reap- 
pointed ; by this means it is within the power of the 
President to keep an office filled, even though the Senate 
should fail or refuse to confirm the appointment that he 
submits. In this manner it would be possible for a Presi- 
dent to keep a favorite in office, and in so doing he might 
indeed conform to the letter of the Constitution, but such 
a course would be so contrary to the spirit and intent 
of this instrument that it would justly subject him to 
impeachment. 



THE CONSTITUTION. 3 I I 

The expression, " that may happen," to give effect to 
the clear intent of the clause, is held to practically mean 
" that exist." 

SEC. 3. He shall from time to time give to the Congress 
Information of the State of the Union, and recommend to 
their Consideration such Measures as he shall judge neces- 
sary and expedient; he may, on extraordinary Occasions, 
convene both Houses, or either of tJiem, and in Case of 
Disagreement between them, with Respect to the Time of 
Adjournment, he may adjourn them to such Time as lie 
shall think proper; he shall receive Ambassadors and other 
public Ministers; he shall take Care that the Laws be 
faithfully executed, and shall Commission all the Officers 
of the United States. 

In the administration of its functions the Executive 
Department is brought into closer and more constant 
relations with the people as a whole than is the legislative 
branch ; in fact, the execution of the laws might be said 
to be the point of contact between the Government and 
its subjects ; hence, the President is in a position to give 
to Congress most valuable information in regard to the 
general condition of affairs throughout the country, and 
to wisely recommend to this body measures for its 
consideration. 

It has been the custom from the inauguration of the 
Government* under the Constitution for the President to 
comply with the requirements of the first part of this 
section by a regular message at the opening of each 



312 OUR SYSTEM OF GOVERNMENT. 

session of Congress and by such special messages as he 
may see fit to present from time to time. 

Presidents Washington and Adams read their messages 
to Congress in person, but Jefferson forwarded his in 
writing and this practice has ever since been maintained. 

Congress itself or either House may also take the 
initiative and call upon the President or any cabinet 
officer for information on such subjects as may be before 
it for consideration. 

The expression, " State of the Union," is held to denote 
both internal conditions and foreign relations, but when 
Congress or either branch asks for information concern- 
ing the latter, under ordinary circumstances it expressly 
recognizes the right of the President to refuse to com- 
municate more than he may deem consistent with the 
best public interests ; on matters of purely domestic con- 
cern also, information has a few times been denied on 
similar grounds. 

The vesting in the President of the power to convene 
Congress on extraordinary occasions scarcely needs ex- 
planation or justification ; sudden emergencies may arise 
during the recess of this body, which may make imme- 
diate legislative action of vital moment; this has been 
demonstrated several times in the history of our country, 
and most forcibly so at the outbreak of the Civil War in 
1861. 

Congress, when convened in special session, possesses 
as full powers as if it had come together at the time pre- 
scribed by the Constitution or by law. Ordinarily, it will 
fully consider the object for which it was summoned, but 
it is by no means compelled to do so and may give its 






THE CONSTITUTION. 313 

entire time and attention to other and distinct matters. 
Congress and also the Senate alone have frequently 
been convened in special session, the latter body being 
called together at such times for the transaction of execu- 
tive business. The House of Representatives has never 
been independently summoned ; indeed, it is difficult to 
imagine a condition or emergency where such a step 
would be productive of any result. 

In England, the sovereign nominally, the prime minis- 
ter in fact, has the power to adjourn Parliament, and to 
dissolve the House of Commons and order a new elec- 
tion. The Constitution vests in the President the power 
of adjourning Congress only when the two Houses them- 
selves cannot agree upon this question, and thus of termi- 
nating a possible contest which otherwise might prove 
not only fruitless but demoralizing; fortunately, an oc- 
casion for the exercise of this power has never yet arisen. 

As the responsibility of conducting diplomatic inter- 
course rests on the President, so the power to receive the 
representatives of foreign nations, i. e., ambassadors and 
other public ministers, is necessarily placed in his hands, 
for it is through them and through our own representa- 
tives in other countries that this intercourse is carried on. 

The power to receive a minister from another nation 
involves on the part of the President the power to reject 
him or to demand of his government that he be recalled, 
or even, in extreme cases of misbehavior or improper 
conduct, to dismiss him. 

The question of receiving a public minister may often 
become a very delicate one, for this reception carries 
with it the recognition of the independent existence as 



314 OUR SYSTEM OF GOVERNMENT. 

a nation of the people whom he represents. In the 
case of a province or a part of a country in revolt, if its 
independence is not a well established fact, such a recog- 
nition is an act of hostility towards the power which is 
endeavoring to restore its authority over this section, and 
may lead to war. A similar responsibility rests upon the 
Executive in receiving an ambassador from a country in 
which a revolution has taken place, for by so doing he 
recognizes the government by which this ambassador is 
accredited as the one actually existing. 

Should Congress take express action and recognize the 
independence of a colony or section in revolt, or the 
rightfulness of one of two rival governments, it would un- 
doubtedly be the duty of the President to exercise his 
power of receiving public ministers in conformity there- 
with, but until this step has been taken, he must act at 
his own discretion. 

The execution of the laws is the essential and charac- 
teristic function of the executive branch of the Govern- 
ment, and it is the great duty of the President to see to it 
by all the means constitutionally vested in him that this 
execution be not obstructed or interrupted, and that the 
administration of the laws be orderly, and uniform, and 
constant throughout the land. 

Not only does it devolve upon the President to carry 
into effect the laws of the United States and the obliga- 
tions to foreign powers arising from express treaty regu- 
lations, but it is also his duty to enforce upon our people 
the observance of the well settled principles and rules of 
international law, which must be regarded as a part of the 
unwritten law of all nations. 



THE CONSTITUTION. 3 I 5' 

The commissioning of an officer is the final step in the 
completion of his appointment. 

" It is . . decidedly the opinion of the court, that, 
when a commission has been signed by the President, the 
appointment is made ; and that the commission is com- 
plete when the seal of the United States has been affixed 
to it by the Secretary of State. 

Where an officer is removable at the will of the Execu- 
tive the circumstance which completes his appointment is 
of no concern ; because the act is at any time revocable ; 
and the commission may be arrested if still in the office 
[of the Secretary of State]. But when the officer is not 
removable at the will of the Executive, the appointment 
is not revocable and cannot be annulled." In the latter 
case " to withhold his commission is an act deemed by 
this court not warranted by law, but violative of a vested 
legal right." l 

The Constitution requires that the President "shall 
commission all the officers of the United States," but this 
expression is practically construed as requiring the Presi- 
dent to commission such officers as are appointed by 
himself, leaving the commissions of the inferior officers to 
be signed by those in whom the power of appointing 
them is vested by Congress. Should the strict letter of 
the requirement be complied with, a large part of the 
time and energy of the Chief Executive would be ex- 
pended in affixing his signature to commissions, a con- 
dition of affairs never intended or contemplated by the 
Constitution. 



x Marbury vs. Madison, 1 Cranch, 137. 



3 16 OUR SYSTEM OF GOVERNMENT. 

SEC. 4. The President, Vice President, and all civil 
Officers of the United States, shall be removed from Office 
on Impeachment ■ for, and Conviction of, Treason, Bribery, 
or other high Crimes and Misdemeanors. 

In England, any citizen may be impeached before the 
Lords by the House of Commons, but the power of the 
House of Representatives in this respect being limited by 
the Constitution to " the President, Vice President and all 
civil Officers," can affect neither private citizens nor 
military or naval officers. 

The first person impeached before the Senate of the 
United States was William Blount, a Senator from Ten- 
nessee, for conspiring in violation of the obligations of 
neutrality of this country, to wrest the Floridas and 
Louisiana from Spain by force and to transfer them to 
Great Britain. 

In this case, which was tried in 1798, the Senate 
decided that it had no jurisdiction, on the ground that 
Blount was not a "civil officer" within the meaning of 
the Constitution, which requires that all officers of the 
United States shall be commissioned by the President, 
while the Senators and Representatives are in this respect 
entirely independent of executive authority. 

In 1803, Judge Pickering of the Federal District Court 
for the District of New Hampshire was impeached for 
making decisions contrary to the law, and for drunkenness 
and profanity while presiding over the court. Judge 
Pickering did not appear at the trial, either in person or 
by counsel; evidence was adduced, however, tending to 



THE CONSTITUTION. 3 17 

show that he was partially insane. He was adjudged 
guilty and removed from office. 

In 1807, Samuel Chase, an Associate Justice of the 
Supreme Court, was impeached for injustice and partiality 
in the trial of certain cases before him, and for perverting 
his rights and powers in endeavoring to compel or wrong- 
fully induce grand juries on two occasions to make indict- 
ments. The articles of impeachment in this case were 
undoubtedly presented from partisan motives, although 
there may have been some just grounds for complaint. 
Judge Chase was acquitted on all the charges brought 
against him. 

In 1830, Judge James H. Peck of the United States 
District Court for Missouri was impeached for an abuse 
of judicial power in severely punishing for contempt an 
attorney who had published in a newspaper a criticism on 
one of his decisions. The trial of this impeachment 
resulted in an acquittal. 

In 1 86 1, West W. Humphries, Judge of the United 
States District Court for Tennessee, was impeached for 
refusing to hold the district court of the United States, 
for advocating secession, and for acting as judge for a 
district court for the States in rebellion. Judge Hum- 
phries was found guilty, removed from office, and dis- 
qualified from holding any office of honor, trust, or profit 
under the United States. 

In 1868, articles of impeachment were brought against 
President Johnson charging him with violating the law 
regulating the tenure of civil offices by removing E. M. 
Stanton from the position of Secretary of War and ap- 
pointing General Lorenzo D. Thomas in his place, and 



3 1 8 OUR SYSTEM OF GOVERNMENT. 

for attempting to bring the then existing Congress into 
disrepute by public speeches and otherwise. Upon the 
latter charge no particular stress was laid; the former, 
however, was energetically pressed. The President was 
finally acquitted, thirty-five Senators voting " guilty," and 
nineteen " not guilty." 

In 1876, W. W. Belknap, Secretary of War, was im- 
peached for corruptly receiving money for an appoint- 
ment to the position of post-trader at Fort Sill in the 
Indian Territory. A few hours before the resolutions for 
impeachment were adopted by the House of Representa- 
tives, Secretary Belknap's resignation was accepted by 
President Grant. 

The articles of impeachment were, however, presented, 
and the Senate proceeded with the trial. A verdict of 
"not guilty" was finally reached, the question practically 
turning on the point of his ceasing to be an officer of the 
United States when his resignation was accepted. 

ARTICLE III 

SEC. 1. The judicial Power of the United States, shall 
be vested in one supreme Court, a?id in such inferior Courts 
as the Congress may, from time to time, ordain and estab- 
lish. The Judges, both of the supreme and inferior 
Courts, shall hold their Offices during good Behaviour, 
and shall, at stated Times, receive for their Services a 
Compensation which shall ?wt be diminished during their 
Continuance in Office. 

As it is the function of the Legislative Department to 
make, and of the Executive to execute the laws, so it is 



THE CONSTITUTION. 319 

the province of the Judiciary to interpret and apply 
them; i. e., to hear and determine properly and legally 
presented controversies involving opposing opinions or 
claims as to the law or as to the facts that control its 
application. The following, from the Federalist, applies 
equally well to the laws of the United States generally, 
as to treaties : — 

" Laws are a dead letter, without courts to expound 
and define their true meaning and operation. The trea- 
ties of the United States, to have any force at all, must 
be considered as a part of the law of the land. Their 
true import, as far as respects individuals, must like other 
laws be ascertained by judicial determinations. To pro- 
duce uniformity in these determinations, they ought to be 
submitted in the last resort, to one SUPREME TRIBUNAL. 
And this tribunal ought to be instituted under the same 
authorities which form the treaties themselves. These 
ingredients are both indispensable. If there is in each 
State a court of final jurisdiction, there may be as many 
different final determinations of the same point, as there 
are courts. There are endless diversities in the opinions 
of men. We often see not only different courts, but the 
judges of the same court, differing from each other. To 
avoid the confusion which would unavoidably result from 
the contradictory decisions of a number of independent 
judicatories, all nations have found it necessary to establish 
one tribunal paramount to the rest, possessing a general 
superintendence, and authorized to settle and declare in 
the last resort a uniform rule of civil justice." l 



Federalist, No. 22. 



320 OUR SYSTEM OF GOVERNMENT. 

At its first session in 1789, Congress passed an act to 
organize a National Judiciary. By this it was provided 
that the Supreme Court should consist of a Chief Justice 
and five Associate Justices, and have two sessions each 
year at the seat of Government. Two systems of subor- 
dinate courts were ordained and established by this act : 
The country was divided into three circuits, in each of 
which was to be a court presided over by a Justice of the 
Supreme Court or by the district judge of the district 
where the court should be held, or by both sitting to- 
gether ; each circuit was further divided into districts, of 
which there were thirteen in the whole country, and a 
court was established in each of these, to be held by a 
district judge. 

The general organization established by the judiciary 
act of 1789 still remains, although it has been modified 
in many of its details from time to time to meet the in- 
creasing demands of the rapidly developing Nation. 

After having been changed several times, in 1869 the 
number of Justices of the Supreme Court was fixed at 
nine, and the number of circuit courts made to corres- 
pond. At the same time provision was also made for the 
appointment of circuit judges. These new judges were 
simply added to the old system, and either of the three 
judges now provided for the circuit courts, or any two of 
them sitting together, were to preside over their sessions. 

In order to relieve the Supreme Court, whose business 
had so increased that it was beyond the power of this 
body to make a prompt disposition of it, Congress, in 
1 89 1, passed a law for the establishment of a new order 
of subordinate courts. 



THE CONSTITUTION. 32 I 

This act provided for the appointment in each circuit 
of an additional circuit judge, possessing the same power 
and jurisdiction as those already existing. For each cir- 
cuit there was created a circuit court of appeals, consist- 
ing of three judges, of whom two constituted a quorum. 
The Justice of the Supreme Court assigned to a circuit, 
and the two circuit judges and the several district judges 
of the same were made competent for its court of appeals, 
but no judge before whom a cause or question has been 
previously tried is allowed to sit as a member of this 
court on its re-trial or re-hearing here. 

The number of district courts at present (1896) is 
sixty-four, new ones having been created from . time to 
time by Congress as the amount of business devolving 
upon the Federal Judiciary has increased. 

The functions of the different courts of the United 
States will be outlined in the discussion upon the follow- 
ing section. 

The history of England plainly shows what effective 
instruments of injustice and oppression the courts may 
become when under the control of a tyrannical executive. 
"Before the Revolution of 1688, or certainly during the 
worst years of the Stuart dynasty, the judge held office at 
the pleasure of the king who appointed him. What was 
the consequence? He was the tool of the hand that 
made and unmade him. Scroggs and Jeffreys were but 
representatives and exemplifications of such a system. 
A whole bench sometimes was packed for the enforce- 
ment of some new and more flagrant royal usurpation. 
Outraged, and in mourning, by judicial subserviency and 
judicial murder, England discerned at the Revolution, 



322 OUR SYSTEM OF GOVERNMENT. 

that her liberty was incompletely recovered and imper- 
fectly guarded, unless she had judges by whom the boast 
that an Englishman's house is his castle, should be 
elevated from a phrase to a fact ; from an abstract right 
to a secure enjoyment." J 

In the "Act of Settlement" of 1701, by which Parlia- 
ment settled the inheritance of the crown of England on 
Princess Sophia of Hanover and her descendants, and 
which, in many of its provisions, might be regarded as 
but a supplement to the "Bill of Rights" of 1689, it 
was declared that the commissions of the judges should 
be made " for so long as they bore themselves well," and 
that their salaries should be " ascertained and established." 

The provision in our Constitution that " the Judges 
both of the supreme and inferior Courts shall hold their 
Offices during good Behaviour," and the prohibition 
against any diminution of their compensation during their 
continuance in office were intended to secure judicial 
independence, and were undoubtedly suggested to the 
framers of this instrument by the similar provisions in the 
" Act of Settlement." To cite again from the great lawyer 
just quoted : — " He [the good judge] must be a man, not 
merely upright ; not merely honest and well-intentioned 
— this of course — but a man who will not respect persons 
in judgment. . . . He shall know nothing about the 
parties ; everything about the case. He shall do every- 
thing for justice ; nothing for himself ; nothing for his 
patron ; nothing for his sovereign. If, on one side, is 
the executive power, and the legislature, and the people — 

J Rufus Choate, Debates of Mass. Const. Convention, 1853, Vol. II. 
p. 802. 



THE CONSTITUTION. 323 

the sources of his honors, the givers of his daily bread 
— and on the other an individual nameless and odious, 
his eye is to see neither, great nor small ; attending only 
to the trepidation of the balance. If a law is passed by 
a unanimous legislature, clamored for by the general 
voice of the public, and a cause is before him on it, in 
which the whole community is on one side and an indi- 
vidual nameless or odious on the other, and he believes it 
to be against the Constitution, he must so declare it, or 
there is no judge." 

The present yearly salaries of the judges of the Federal 
courts are as follows : The Chief Justice of the Supreme 
Court, $10,500; the Associate Justices, $10,000; the 
Circuit Judges, $6,000; the District Judges, from $3,500 
to $5,000. 

By the act of 1869, it was provided that the judge of 
any court of the United States having reached the age of 
seventy years, and having held his commission for ten 
years, might retire from office, and receive during the 
remainder of his life the same amount of money that 
would have been paid to him had he continued in his 
position. 

Beside the judges, the principal officers of the Federal 
courts are the attorneys, the marshals, the clerks, and 
the reporters. 

The Attorney General, who is a member of the Cabi- 
net, is charged with protecting the legal rights and inter- 
ests of the United States in all cases arising in the 
Supreme Court, in which they may be affected ; he has, 
also, general supervision over the attorneys and marshals 
of the subordinate courts. 



324 OUR SYSTEM OF GOVERNMENT. 

The duties of the marshal are similar to those of a 
sheriff in a State court; i. e., to give effect to its orders, 
serve its writs and the like. The clerk keeps a record of 
the proceedings of the court and of the history of each 
case coming before it, administers the oath to witnesses, 
etc. The duty of the reporter is to cause the decisions 
of the Court to be properly printed and published. 
These " Law Reports," carefully analyzed and indexed, 
are of the greatest value, for while the ruling or decision 
of a court upon a contested point of law applies, strictly 
speaking, only to the particular case or matter in which 
it is given, yet subsequent courts will follow this ruling as 
a precedent in similar cases unless there should be very 
strong reasons for overruling it. The long established 
rule, " stand by the decisions made," must prevail if the 
common law is to be certain and consistent. 

Each of the circuit courts of appeals has a marshal, a 
clerk, and a reporter, whose respective duties are the 
same as those of the corresponding officers of the Su- 
preme Court. The circuit and the district courts, not 
being courts in which contested points of law are finally 
passed upon; i. e., not being courts of appeal, have no 
reporters ; the marshals and clerks of the district courts 
also act as marshals and clerks in the circuit courts, and 
the district attorneys, who, like the Attorney General, 
represent the United States, serve in this capacity in all 
three of the subordinate courts. 

The other permanent courts established by National 
authority are the Territorial courts, the courts of the 
District of Columbia, and the Court of Claims. These, 
however, are not a part of the Federal judiciary, — are not 



THE CONSTITUTION. 325 

denoted by the term, "inferior courts" as used in the 
section under discussion. The courts of the Territories 
and of the District are established by Congress in virtue 
of its power to provide systems of government for the 
territory belonging to the United States, and for the seat 
of the Government. 

In each Territory there is established a judicial organi- 
zation at the head of which is a supreme court whose 
members are appointed for four years by the President 
" by and with the advice and consent of the Senate." 
The judicial system of the District of Columbia also con- 
sists of a supreme court and subordinate courts, the jus- 
tices of the supreme court here, however, holding their 
commissions during good behavior. 

The Court of Claims consists of a chief justice and four 
associate justices appointed by the President and holding 
their office during good behavior. Before the establish- 
ment of the Court of Claims in 1855, those having claims 
against the United States were obliged to petition to 
Congress for payment or satisfaction, it being a political 
maxim that an action cannot be brought against a nation 
in its own courts without its express consent. As Con- 
gressional investigation of the many and complex claims 
of this nature that were continually arising was in every 
w T ay extremely unsatisfactory, this court was established 
" for the triple purpose of relieving Congress, and of pro- 
tecting the Government by regular investigation, and of 
benefiting the claimants by affording them a certain mode 
of examining and adjudicating upon their claims. 
Originally it was a court merely in name, for its power 
extended only to the preparation of bills to be submitted 



326 OUR SYSTEM OF GOVERNMENT. 

to Congress. In 1863, the number of judges was 
increased from three to five, its jurisdiction was enlarged, 
and, instead of being required to prepare bills for Con- 
gress, it was authorized to render final judgment, subject 
to appeal to this [the Supreme] court, and to an estimate 
by the Secretary of the Treasury of the amount required 
to pay each claimant. This court being of the opinion 
that the provision for an estimate was inconsistent with 
the finality essential to judicial decision, Congress repealed 
that provision. Since then the Court of Claims has ex- 
ercised all the functions of a court, and this court has 
taken full jurisdiction on appeal." * 

When a claim has been finally determined to be valid, 
it is paid by the Secretary of the Treasury from a general 
appropriation made by Congress for the payment of 
private claims against the United States. 

SEC. 2. ] The judicial Power shall extend to all Cases, 
in Law and Equity, arising tender this Constitution, the 
Laws of the United States, and Treaties made, or which 
shall be made, under their Authority; — to all Cases affect- 
ing Ambassadors, other public Ministers and Consuls; — to 
all Cases of admiralty and maritime Jurisdiction; to 
Controversies to which the United States shall be a Party; 
— to Controversies between two or more States; — between a 
State and Citizens of another State; — between Citizens of 
different States; — between Citizens of the same State claim- 
ing Lands under Grants of different States, and betweeti a 
State, or the Citizens thereof, and foreign States, Citizens 
or Subjects. 



United States vs. Klein, 13 Wall., 144. 



THE CONSTITUTION. 32/ 

The exercise of judicial power is, from the nature of 
the power itself, restricted to cases properly brought 
before the courts for adjudication, for, as has already 
been pointed out, although the ruling or decision of a 
court made in one instance may have great influence in 
shaping future rulings and decisions upon similar matters, 
yet in itself, it has no such direct general authority as 
does a statute. 

''Equity" as distinguished from "Law" denotes a kind 
of jurisprudence that, adopted from the Roman system, 
has for six centuries developed side by side with the 
common law which it supplements by affording means for 
establishing rights and for preventing or righting wrongs 
or injuries which may arise from fraud, deceit, or mistake, 
and to which statutory and common law remedies do not 
apply, or are found to be inadequate. 

In England the chancellor, to whom equity powers 
were granted by the sovereign, at first apparently exer- 
cised them according to his personal opinion of right and 
wrong when complaint or petition was made to him con- 
cerning matters where the law could not effect substantial 
justice. But as courts of chancery, i. e., courts for the 
administration of equity, became an established and rec- 
ognized part of the judicial system of the country, they 
adopted the old doctrine of the law courts, " stand by 
the decisions made," so that to-day, in both England and 
America, the question as to what constitutes a wrong or 
an injury that can be prevented or righted, as well as to 
the mode of procedure and the nature of the remedy, 
has become practically as much a matter of precedent in 



328 OUR SYSTEM OF GOVERNMENT. 

a case in equity as are the questions that come up for 
settlement in a suit at law. 

Equitable jurisprudence consists in the judicial applica- 
tion to individual cases of certain accepted and estab- 
lished principles, the sole authority of these principles 
resting in the fact that they must be universally recognized 
as right and just. 

It is not within the province of this book to discuss 
these " maxims in equity," but the few leading ones sub- 
joined may make the general system itself more clear: — 
" Equity follows the law;" "Equity will not interfere 
when there is a complete and satisfactory remedy at 
law;" "Equity looks at the intent rather than at the 
form;" "Equity regards that as done which ought to 
have been done;" "He who comes into equity must 
come with clean hands;" "Equality is equity." 

If one person sells land to another, the common law 
looks no further than the deed to determine what and 
how much land has changed ownership by this trans- 
action. If now, either party can plainly show that an 
error was made in the deed to his disadvantage, by mis- 
take, fraud, or deceit, so that it purports to convey more 
or less land than was in fact intended or bargained for, a 
court in equity will cause this deed to be corrected so as 
to accord with the actual intention of the parties at the 
time the transfer was made, for " equity regards that as 
done which ought to have been done," and "looks at the 
intent rather than the form." 

In matters pertaining to trusts and partnerships, the 
law assumes that the interests of those concerned are 
indivisible, but equity looks to the personal rights of the 



THE CONSTITUTION. 329 

parties and affords a means of establishing them. In 
regard to contracts also, legal remedies arise only after 
they are broken, when damages may be claimed, 
equity, however, intervenes and compels their specific 
performance. 

In England and in some of the States of the Union, 
chancery, or equity courts exist independently of the law 
courts proper, but in our Federal system, both law and 
equity cases come before the same tribunals. 

The extending of the power of the Federal Judiciary 
" to all Cases in Law and Equity arising under this Con- 
stitution, the laws of the United States, and the Treaties 
made, or which will be made under their Authority," is 
obviously appropriate and necessary. 

Whatever laws or regulations emanate from the Govern- 
ment of the whole Nation must be interpreted and passed 
upon by a judicial body deriving its authority from, and 
responsible to the whole Nation ; should this function be 
delegated to the State tribunals, the National Judiciary, 
and, in fact, the National Government itself, could possess 
no real authority. 

As the Constitution is the supreme law of the land, the 
courts of the United States are at times called upon to 
declare certain enactments of Congress or of a State legis- 
lature, or some provision of a State constitution, invalid 
and of no effect, as being in conflict with this instrument. 
In such an event, these courts, and especially the Supreme 
Court as the tribunal of the last resort, will make every 
presumption in favor of the validity of the law or pro- 
vision attacked and set it aside only when the clearest and 
most convincing reasons for so doing are adduced. 



330 OUR SYSTEM OF GOVERNMENT. 

The power of the Judiciary to thus declare void statutes 
duly enacted by Congress does not arise from any superi- 
ority of the former department of the Government over 
the latter, for they are co-ordinate in dignity and author- 
ity. The Constitution, however, is the supreme law to 
which all others conflicting with it must yield, and the 
courts must give it full effect when appealed to in any 
cases brought before them for adjudication. In such 
matters as are not capable of assuming the character of a 
suit at law or equity, or do not actually assume this 
character, Congress itself must be the final judge, as it 
must also be the final judge of all questions relating to 
the policy or impolicy of any measure ; if the power of 
Congress to pass a certain act be established, the wisdom 
or unwisdom of this body in this respect is not a matter 
with which the courts have anything to do. 

The relations of ambassadors and other public ministers 
and consuls to the government of the country in which 
they reside being, in the main, established by the rules of 
international law, and the National Government being, in 
our system, the only one that is responsible for any infrac- 
tion of these rules, and that holds diplomatic relations 
with foreign nations, the propriety of placing in the 
Federal courts the jurisdiction of all cases affecting them, 
is obvious. Where the responsibility rests, power com- 
mensurate with that responsibility must be given. 

Cases of admiralty and maritime jurisdiction are those 
involving: — (i) Maritime contracts, such as the payment 
of seamen's wages, contracts for freights, wharfage, pilot- 
age, etc. ; (2) Maritime torts; torts are wrongs or injuries 
which the law regards as of a private nature, and dis- 



THE CONSTITUTION. 33 I 

tinguishes from crimes which also involving injury and 
harm to individuals are from their character or enormity 
offenses against society; e.g., a collision between two ves- 
sels caused by the negligence of one would be a case of 
maritime tort unless the circumstances should be such 
that the law would place it in the category of crimes ; 
(3) Captures on the sea, jure belli, i. e.\ cases of prize, 
and (4) Seizures in cases involving forfeiture of vessel or 
cargo under the revenue or other laws. 

The jurisdiction of the Federal courts includes cases of 
the nature above indicated arising not only on the " high 
seas," but on all bodies of navigable water even though 
they lie within the limits of a single State ; hence, does 
not correspond to the power of Congress over commerce 
between the different States and with foreign nations. 

" It scarcely seems possible to raise a reasonable doubt, 
as to the propriety of giving to the National courts juris- 
diction of cases, in which the United States are a party. 
It would be a perfect novelty in the history of National 
jurisprudence, as well as of public law, that a sovereign 
had no authority to sue in his own courts. Unless this 
power were given to the United States, the enforcement 
of all their rights, powers, contracts, and privileges in 
their sovereign capacity, would be at the mercy of the 
States. They must be enforced, if at all, in the State 
tribunals. And there would not only not be any com- 
pulsory power over those courts to perform such func- 
tions ; but there would not be any means of producing 
uniformity in their decisions. A sovereign without any 
means of enforcing civil rights, or compelling the per- 
formance, either civilly or criminally, of public duties on 



332 OUR SYSTEM OF GOVERNMENT. 

the part of the citizens, would be a most extraordinary 
anomaly. It would prostrate the Union at the feet of 
the States. It would compel the National Government 
to become a suppliant for justice before the judicature of 
those, who were by other parts of the Constitution placed 
in subordination to it." * 

The next four provisions of this clause were made for 
the purpose of preventing the jealousies and quarrels that 
might arise between the different States,. by providing for 
the settlement in an impartial tribunal of those cases in 
which a State court might be charged, justly or unjustly, 
with bias. The settlement of a controversy between two 
States by the courts of either would scarcely be accepted 
as final by the other; and especially would this be true if 
the courts of both States claimed jurisdiction of the mat- 
ter, as, for instance, in case of conflicting claims as to 
boundaries. Such a condition would be a perpetual 
threat of discord and strife ; but by the wise provisions of 
the Constitution this danger is avoided, for the decision 
of a question of this nature by the Federal Judiciary must 
necessarily be accepted as final and conclusive by all 
concerned. 

The same considerations apply, though with less force, 
to the case of controversies between a " State and the 
Citizens of another State." " Controversies," however, as 
the term is used here, does not include crimes, for a per- 
son within the limits of any State or country offending 
against its laws, at once subjects himself to the full juris- 
diction of its courts so far as the trial and punishment for 



1 Story, Commentaries on the Constitution, Sect. 166S. 



THE CONSTITUTION. 333 

crime is concerned. All that his own State or country 
can ask is that he receive a fair trial according to the law 
of the place where he committed the crime, and, in the 
event of conviction, that his punishment be not more 
severe than that ordinarily inflicted for similar offenses. 

In 1 794-, as a result of a suit that had been brought 
against the State of Georgia in the Federal courts, and 
that had produced much excitement among many who 
held that "the dignity and sovereign rights" of the States 
were threatened by their being thus liable to be brought 
to account, the Eleventh Amendment to the Constitution 
was proposed by Congress, and, being duly ratified, was 
proclaimed a part of the organic law in 1798. 

AMENDMENT XI. The Judicial power of the United 
States shall not be construed to extend to any suit in law or 
equity, commenced or prosecuted against one of the United 
States by Citizens of another State, or by Citizens or Sub- 
jects of any Foreign State. 

Although this amendment takes away any liability of a 
State's becoming a defendant in the courts of the United 
States on a suit brought by an individual, yet its officials 
acting in virtue of an unconstitutional act of its legisla- 
ture, such, for instance, as one levying a tax on the bonds 
of the National Government, have no immunity in this 
respect from the fact that they are acting as State officers, 
for such an enactment is not law, and hence neither gives 
authority, nor constitutes a protection to those who seek 
to carry its provisions into effect. 

If two or more citizens of one State claim the same 



334 OUR SYSTEM OF GOVERNMENT. 

land under the grants of different States, the real question 
at issue will be, which of the States making these grants 
was the original and rightful owner. The settlement of 
this matter may be of great and direct interest to these 
States, for, aside from the duty resting upon the State 
whose grant is set aside, to reimburse the party by whom 
any payment may have been made on this account, the 
question of the boundaries of the respective States may 
be involved, as well as the ownership of lands not yet 
disposed of. Hence, suits of this nature should be sub- 
mitted to the Federal tribunals for the same reasons that 
were given for making a like disposition of direct con- 
troversies between different States. 

Controversies between a State or its citizens with a 
foreign State or its citizens, are also wisely placed within 
the jurisdiction of the National courts, for such matters 
are to a greater or less extent questions of international 
relations, in which the Nation as a whole is responsible. 

Although the Constitution fixes the extent of the 
judicial power of ^the United States, the exercise of this 
power, other than through the original jurisdiction of the 
Supreme Court, is left to be determined and regulated 
from time to time by law. Hence, it has been necessary 
for Congress to create inferior courts, and to confer upon 
each so much of the judicial power of the United States 
as in its judgment shall seem proper and suitable, and 
restrict that which is conferred at discretion. In doing so 
it may apportion among the several Federal courts all the 
judicial power of the United States, or it may apportion 
part only, and in that case what is not apportioned is left 
to be exercised by the courts of the State. Thus the 



THE CONSTITUTION. 335 

States may have limited jurisdiction within the sphere of 
the judicial power of the United States, but subject to be 
further limited or wholly taken away by subsequent 
Federal legislation. Such is the state of the law at this 
time : many cases within the reach of the judicial power 
of the United States are left wholly to the State courts, 
while in many others the State courts are permitted to 
exercise a jurisdiction concurrent with that of the Federal 
courts, but with a final review of their judgments on 
questions of Federal law in the United States Supreme 
Court. 

2 In all Cases affecting Ambassadors, other public Min- 
isters and Consuls, and those in which a State shall be a 
Party, the supreme Court shall have original Jurisdiction, 
hi all other Cases before mentioned, the supreme Court 
shall have appellate Jurisdiction, both as to Law and Fact, 
with such Exceptio?is, and under such Regulations as the 
Congress shall make. 

The jurisdiction of a court is its authority to hear and 
determine cases. A court is said to have original juris- 
diction in a case when this case may be commenced 
before it, and to possess appellate jurisdiction when it has 
power to review and correct the proceedings of a court in 
which the case has previously been tried. 

By the common law, it is the function of the judge pre- 
siding at a trial to declare the law, and of the jury to 
determine the facts in any suit or controversy before 
them, and the decision of the latter upon such facts is not 
subject to review by an appellate court for any purpose 



336 OUR SYSTEM OF GOVERNMENT. 

other than that of ordering a re-trial of the same case 
before a new jury if the verdict given is clearly against 
the evidence. On the other hand, if either party to the 
suit holds the declaration or exposition of the law to be 
erroneous, it may be carried by "writ of error" before an 
appellate court for review and possible reversal. When 
the Constitution was submitted to the people for their 
approval, the provision that gave to the Supreme Court 
"appellate Jurisdiction both as to Law and Fact," was 
bitterly assailed as striking a blow at the system of trial 
by jury by rendering its verdicts subject to review and 
reversal by a body of judges. This criticism was well 
based, and as a result of it the following amendment, with 
others, was proposed by Congress at its first session and 
quickly ratified by the requisite number of States. 

Amendment VII. In suits at common law, where the 
value in controversy shall exceed twenty dollars, the right 
of trial by jury shall be preserved, and no fact tried by a 
jury shall be otherwise re-examined in any Court of the 
United States, than according to the rules of the common 
law. 

Equity jurisprudence, and admiralty and maritime juris- 
prudence are of Roman, or "civil law" origin, and when 
they were grafted on the common law system of England 
they continued to be administered by judges without the 
intervention of a jury ; hence, in cases of this nature, 
the decision of a court on matters of fact as well as on 
matters of law may be reviewed by a court of appellate 
jurisdiction without contravening the provisions of the 



THE CONSTITUTION. 337 

Seventh Amendment. The same holds true of suits origi- 
nating before any special court or commission which sits- 
for the hearing and trial of cases without a jury; e. g. } 
the Court of Claims, and the Interstate Commerce Com- 
mission ; it being understood, however, that all these cases 
of appeal, so far as the Federal judiciary is concerned, 
must be provided for and regulated by Congressional 
action. 

The Supreme Court is given original jurisdiction over 
" all Cases affecting Ambassadors, other public Ministers 
and Consuls, and those in which a State shall be a Party." 
The Constitution, however, does not make this original 
jurisdiction exclusive of that of the State tribunals over 
the same subjects, but Congress, having power to act in 
this regard, provided in the Judiciary Act of 1789 as 
follows : 

"The Supreme Court shall have exclusive jurisdiction 
of all controversies of a civil nature where a State is a 
party, except between a State and its citizens, or between 
a State and citizens of other States, or aliens, in which 
latter cases it shall have original, but not exclusive, juris- 
diction. And it shall have exclusively all such jurisdiction 
of suits or proceedings against embassadors, or other 
public ministers, or their domestics, or domestic servants, 
as a court of law can have consistently- with the law of 
nations ; and original, but not exclusive, jurisdiction of 
all suits brought by embassadors, or other public minis- 
ters, or in which a consul or vice-consul is a party." l 

It is a principle of international law that the public 
representative of a nation, together with his suite and 
servants shall have the privilege of exterritoriality in the 



J Rev. Statutes, U. S., Sec. 687. 

22 



338 OUR SYSTEM OF GOVERNMENT. 

country to which he is sent; i. e. y he shall not be subject 
to its jurisdiction or laws although protected by them in 
all his rights and privileges. Hence, neither an ambassa- 
dor nor other public minister of a foreign nation, nor any 
member of his official or personal household unless he 
has committed some great crime, can be made a defend- 
ant in any court in this country. This doctrine of the 
law of nations has been sanctioned by express statute. 
A consul, however, who is but a commercial agent, and 
who has, strictly speaking, no representative character, is 
subject to the jurisdiction of the country in which he 
resides, and the statute does not deprive the State courts 
of concurrent jurisdiction over cases affecting him. 

The law of March 3, 1891, establishing the circuit 
courts of appeals, provides that all appeals from the dis- 
trict and circuit courts shall be subject to review in the 
Supreme Court of the United States or in the circuit 
courts of appeals, as follows: — 

" Sec. 5. That appeals or writs of error may be taken 
from the district courts or from the existing circuit 
courts direct to the Supreme Court in the following 
cases : 

In any case in, which the jurisdiction of the court is in 
issue ; in such cases the question of jurisdiction alone 
shall be certified to the Supreme Court from the court 
below for decision. 

From the final sentences and decrees in prize causes. 

In cases of conviction of a capital or otherwise infamous 
crime. 

In any case that involves the construction or applica- 
tion of the Constitution of the United States. 

In any case in which the constitutionality of any law of 



THE CONSTITUTION. 339 

the United States, or the validity and construction of any 
treaty made under its authority, is drawn in question. 

In any case in which the constitution or law of a State 
is claimed to be in contravention of the Constitution of 
the United States. 

Nothing in this act shall affect the jurisdiction of the 
Supreme Court in cases appealed from the highest court 
of a State, nor the construction of the statute providing 
for review of such cases." x 

In all cases other than those provided for in this sec- 
tion the circuit courts of appeals have appellate jurisdic- 
tion, and their decisions on the appeals made to them are 
final, but any court of appeals may certify to the Supreme 
Court any questions or propositions of law on which in- 
struction is desired, and this instruction being given must 
stand as the law; also, the Supreme Court may cause 
any case decided by a circuit court of appeals to be 
brought before itself for review and final determination. 

The statute referred to in the last provision of the 
above-given section of the Judiciary Act of 1891 is as 
follows : — 

" Sec. 709. A final judgment or decree in any suit in 
the highest court of a State, in which a decision in the 
suit could be had, where is drawn in question the validity 
of a treaty or statute of, or an authority exercised under, 
the United States, and the decision is against their valid- 
ity ; or where is drawn in question the validity of a 
statute of, or an authority exercised under any State, on 
the ground of their being repugnant to the Constitution, 
treaties or laws of the United States, and the decision is 
in favor of their validity ; or where any title, right, privi- 



'Supplement to Rev. Statutes, U. S., p. 903. 



340 OUR SYSTEM OF GOVERNMENT. 

lege, or immunity is claimed under the Constitution, or 
any treaty or statute of, or commission held or authority 
exercised under the United States, and the decision is 
against the title, right, privilege, or immunity specially 
set up or claimed, by either party, under such Constitu- 
tion, treaty, statute, -commission, or authority, may be 
re-examined and reversed or affirmed in the Supreme 
Court on writ of error." ' 

When, therefore, in any case a State court makes a 
decision that, if given effect, would be in derogation of 
powers exercised by the Government of the United States, 
or of rights or protection claimed under its Constitution, 
laws, or treaties, to the courts of the United States is 
properly and necessarily given the power to review this 
decision ; if they did not have this power, " This Constitu- 
tion, and the Laws of the United States which shall be 
made in Pursuance thereof ; and all Treaties made or 
which shall be made, under the Authority of the United 
States" 2 would not be the supreme Law of the Land. 

The circuit courts and the district courts of the United 
States are trial courts, where issues of fact as well as 
issues of law are determined, the latter, of course, being 
subject to review on appeal to the Supreme Court or to 
the circuit courts of appeals as set forth in the above 
discussion. 

The jurisdiction of the circuit courts and of the dis- 
trict courts is determined by statutory provisions which 
are too numerous to be set forth here. In general, it 
may be said that the circuit courts have cognizance of 
those suits of greater moment that arise under the Con- 



l Rev. Statutes, U. S. 2 Article VI. Sect. 2. 






THE CONSTITUTION. 341 

stitution and laws of the United States, while cases of 
lesser importance are tried before the district courts ; in 
many matters, however, the two courts have concurrent 
jurisdiction ; i. e., the suit may be brought in either. 

3 The Trial of all Crimes, except in Cases of Impeach- 
ment, shall be by Jury; and such Trial shall be held in 
the State where the said Crimes shall have been committed; 
but when not committed within any State, the Trial shall 
be at such Place or Places as the Congress may by Law 
have directed. 

A trial, traverse, or petty jury is a body of twelve 
men chosen by lot from the ordinary walks of life to 
decide under the direction of a judge questions of fact 
arising in a suit at law. 

In deciding upon these questions of fact, the jurors 
must consider exclusively the testimony given by sworn 
witnesses, and the testimony offered may be excluded by 
the judge if he deems it immaterial, or the admission of 
it contrary to the established rules of evidence. 

As all evidence must be sworn to and admitted by the 
court, it follows that if a juror should communicate to 
his fellows knowledge that he has acquired from other 
sources, or should act upon such knowledge himself, it 
would be sufficient to vitiate the verdict given. 

After the testimony on both sides is given and the 
arguments have been made, the judge " makes his charge " 
to the jury; i. e., he explains to them the points of law 
involved, by which, after establishing the facts, they can 



342 OUR SYSTEM OF ' GOVERNMENT. 

find a verdict for the plaintiff or the defendant, or, in a 
criminal case, a verdict of guilty or not guilty. 

The qualifications of persons to serve as jurors in the 
courts of the United States are required by law to be the 
same as those of the jurors of the highest courts in the 
State in which they are summoned. 

In 1879, it was enacted by Congress "that all such 
jurors, grand and petit, ... shall be publicly drawn 
from a box containing, at the time of each drawing, the 
names of not less than three hundred persons . ... 
which names shall have been placed therein by the clerk 
of such court and a commissioner, to be appointed by a 
judge thereof, which commissioner shall be a citizen of 
good standing, residing in the district in which the court is 
held, and a well-known member of the principal political 
party in the district in which the court is held, opposing 
that to which the clerk may belong, the clerk and said 
commissioner each to place one name in said box, alter- 
nately, without reference to party affiliations, until the 
whole number required shall be placed therein." l 
Such jurors may also be drawn from the boxes used by 
the State authorities in selecting jurors for their highest 
court. 

That a person may be qualified to act as a juryman in 
a certain case, it is essential that he should be impartial. 
This does not mean that he should be ignorant of the 
matter in issue or that he should have formed no opinion 
concerning it; such a requirement in this age of news- 
papers and much reading would make ignorance and 



Supplement to Rev. Statutes, U. S., p. 270. 



THE CONSTITUTION. 343 

stupidity the prime qualifications where clearness of ideas 
and strong mental grasp are especially required. The 
test of disqualification is, — has the juryman formed such 
opinions or prejudices concerning the matter at issue that 
he would be unable to give a verdict according to the 
weight of testimony. 

Much criticism, and some of it probably just, has been 
directed at our system of trial by jury, but with all its 
defects it would be difficult to find any other system that 
would satisfactorily fill its place. 

The function of a jury in determining facts, has to do 
with the ordinary, every-day life of the people, and these 
facts should be passed upon from the standpoint of com- 
mon, experience rather than from that of great learning 
and logical consistency. 

" Twelve good and lawful men are better judges of 
disputed facts than twelve learned judges." x 

In regard to crimes against the United States not 
committed within any State, Congress has enacted as 
follows : — 

"The trial of all offenses committed upon the high 
seas or elsewhere, out of the jurisdiction of any particular 
State or district, shall be in the district where the offender 
is found, or into which he is first brought." 2 

It has been uniformly held that the original jurisdiction 
vested in the Supreme Court cannot be increased by 
Congress, for such increase would involve a correspond- 



J Judge Dillon, Laws and Jurisprudence of England and America, 
p. 168. 

2 Rev. Statutes, U. S., Sec. 703. 



344 °UR SYSTEM OF GOVERNMENT. 

ing diminution of the appellate jurisdiction expressly 
given to this tribunal. " If it had been intended to leave 
it in the discretion of the legislature to apportion the 
judicial power between the Supreme and the inferior 
courts according to the will of that body, it would cer- 
tainly have been useless to have proceeded further than 
to have defined the judicial power, and the tribunals in 
which it should be vested. ... If Congress remains 
at liberty to give this court appellate jurisdiction, where 
the Constitution has declared its jurisdiction shall be 
original ; and original jurisdiction, where the Constitution 
has declared it shall be appellate ; the distribution of 
jurisdiction made in the Constitution is form without 
substance." ' 

Sec. 3. l Treason against the United States, shall con- 
sist only in levying War against them, or in adhering to 
their Enemies, giving them Aid and Comfort. No Person 
shall be convicted of Treason tmless on the Testimony of 
two Witnesses to the same overt Act, or on Confession in 
open CoiLrt. 

Treason is the attempt of a subject to injure or over- 
throw his sovereign or government. This offense has 
always been held as the most odious known to the law, 
and, hence, subject to the most condign punishment. 

Treason being of a political nature, there is always 
danger that in time of great political excitement the 
meaning of the term may be extended beyond its proper 



J Marburj vs. Madison, 1 Cranch, 13^ 



THE CONSTITUTION. 345 

limits and made to comprehend minor offenses, or even 
acts which involve nothing more than criticism or justifia- 
ble opposition to certain governmental or administrative 
measures. 

The history of England shows plainly what an instru- 
ment of oppression the doctrine of "constructive treason" 
has been in the hands of a court swayed by a tyrannical 
king, and one great French writer has even gone so far as 
to declare that " if the crime of treason be indeterminate, 
that alone is sufficient to make any government degen- 
erate into arbitrary power." l 

"As there is no crime which can more excite and 
agitate the passions of men than treason, no charge 
demands more from the tribunal before which it is made 
a deliberate and temperate inquiry. Whether this inquiry 
be directed to the fact or to the law, none can be more 
solemn, none more important to the citizens or to the 
government; none can more affect the safety of both. 

To prevent the possibility of those calamities which 
result from the extension of treason to offenses of minor 
importance, that great fundamental law which defines and 
limits the various departments of our government has 
given a rule on the subject, both to the legislature and 
the courts of America, which neither can be permitted to 
transcend. 

To constitute that specific crime (defined by the Con- 
stitution), war must be actually levied against the United 
States. However flagitious may be the crime of conspir- 
ing to subvert by force the government of our country, 



'Montesquieu, Spirit of the Laws, Book 12, Ch. 7. 



346 OUR SYSTEM OF GOVERNMENT. 

such conspiracy is not treason. To conspire to levy war, 
and actually levy war, are distinct offenses. The first 
must be brought into operation by the assemblage of 
men for a purpose treasonable in itself, or the fact of 
levying war cannot have been committed. . . . It is 
not the intention of the court to say that no individual 
can be guilty of this crime who has not appeared in arms 
against his country. On the contrary, if war be actually 
levied, that is, if a body of men be actually assembling 
for the purpose of effecting by force a treasonable pur- 
pose, all those who perform any part, however minute, or 
however remote from the scene of action, and who are 
actually leagued in the general conspiracy, are to be con- 
sidered as traitors. But there must be an actual assem- 
bling of men for the treasonable purpose to constitute a 
levying of war. 

Crimes so atrocious, as those which have for their 
object the subversion by violence of those laws and insti- 
tutions which have been ordained in order to secure the 
peace and happiness of society, are not to escape punish- 
ment because they have not ripened into treason. The 
wisdom of the legislature is competent to provide for the 
case ; and the framers of our Constitution, who not only 
defined and limited the crime, but with jealous circum- 
spection attempted to protect their limitation by provid- 
ing that no person should be convicted of it unless on the 
testimony of two witnesses to the same overt act, or on 
confession in open court, must have conceived it more 
safe that punishment in such cases should be ordained by 
general laws, formed upon deliberation, under the influ- 
ence of no resentments, and without knowing on whom 



THE CONSTITUTION. 347 

they were to operate, than that it should be inflicted 
under the influence of those passions which the occasion 
seldom fails to excite, and which a flexible definition of 
the crime, or a construction which would render it flexi- 
ble, might bring into operation. It is therefore more safe 
as well as more consonant to the principles of our Consti- 
tution, that the crime of treason should not be extended 
by construction to doubtful cases ; and that crimes not 
clearly within the constitutional definition should receive 
such punishment as the legislature in its wisdom may 
provide." * 

As indicated by the words of Chief Justice Marshall 
just quoted, the object of requiring the testimony of two 
witnesses to the actual levying of war Or the giving of aid 
and comfort to the enemies of the United .States, to con- 
vict a person of treason, is to secure the accused against 
the results of popular clamor and prejudice ; and, as even 
an innocent man may be led through promises and threats 
to confess a crime which he never has committed, the 
Constitution wisely provides that confessions as to the 
commission of treason, to be conclusive, must be made in 
open court. 

*The Congress shall have Power to declare the Pun- 
ishment of Treason, but no Attainder of Treason shall 
work Corruption of Blood, or Forfeiture except during the 
Life of the Person attainted. 

The punishment for treason was by the common law 
barbarous in the extreme; not only was the offender put 



l Ex parte Bollman and Swartout, 4 Cranch, 75. 



34§ OUR SYSTEM OF GOVERNMENT. 

to death in a cruel manner, but attainder, or complete 
extinction of all his rights and capacities under the law, 
in fact, of his legal and political existence, followed on 
conviction and sentence to death for this crime ; all his 
estate was forfeited to the crown, and his blood was also 
corrupted; i. e., he could neither inherit lands, nor could 
his children or other of his kin inherit through him, 
either before or after his death ; in fact, the family link, 
or bond, that he had constituted, was destroyed so far as 
the law was concerned. 

Corruption of blood, at least so far as it has effect after 
the death of the criminal, is obviously harsh and unjust, 
as inflicting punishment upon the innocent as well as the 
guilty. Though it is scarcely conceivable that our Na- 
tional legislature would denounce a penalty of this nature 
against any crime, the offense of treason tends so strongly 
to create public excitement and indignation, and hence to 
the adoption of extreme measures, that the Constitution 
wisely restrains Congress from extending the direct con- 
sequences of a conviction for this crime beyond the 
offender himself. 

In 1790, Congress enacted that " no , conviction or 
judgment shall work corruption of blood or any forfeiture 
of estate." ' It would have been well if this unmodified 
declaration had been inserted in the Constitution instead 
of the one under consideration ; then, by the organic 
law, any case seeming to demand as a penalty forfeiture 
of estate or corruption of blood, if indeed, there ever 
could be justice in the, latter punishment, would be left to 
be determined and provided for by Congress through 
*Rev. Statutes, U. S., Sect. 5326. 






THE CONSTITUTION. 349 

definite statutory enactment, having general application. 
In the same general act of 1790, Congress provided 
that the punishment of treason should be death by hang- 
ing. In 1862, the severity of this law was modified by 
giving to the court the discretion to substitute for the 
death penalty imprisonment at hard labor for not less 
than five years and a fine of not less than ten thousand 
dollars. 

Severe punishments have also been denounced against 
the crimes of conspiring to subvert the National Govern- 
ment, and of attempting by force to hinder the due 
execution of its laws. 

ARTICLE IV. 

SEC. 1. l Full Faith and Credit shall be given in each 
State to the public Acts, Records, and judicial Proceedings 
of every other State. A?id the Congress may by general 
Laws prescribe the Manner in which such Acts, Records 
and Proceedings shall be proved, and the Effect thereof. 

It may often happen from the complex business inter- 
course and relations between the people of different 
nations, or as a result of migration and change of resi- 
dence, that the courts of one country will be called upon 
to determine questions involving laws or the judgment of 
foreign courts, such, for instance, as the legality of a will 
or the binding force of a contract made under the juris- 
diction of another government, or the judgment and 
decrees of a foreign court concerning matters which may 
be brought up for litigation here, or which may have 
some bearing in a case already on trial. 



359 OUR SYSTEM OF GOVERNMENT. 

Until recently, the prevailing doctrine of the common 
law has been that the judgments of a foreign court, when 
appealed to in the trial of a case in this country, were 
but prima facie evidence of the matter which they pur- 
ported to decide; i. e., such judgments were presumably 
correct, but still were subject to be reviewed, and if in 
the opinion of the American court they were not in 
accordance with the laws of the country in which they 
were made, they would be overruled. 

Before the Revolution, the colonies were generally 
deemed foreign to one another in this respect ; in a few 
instances, however, some had passed laws placing the 
judgments of the courts of neighboring colonies on the 
same footing as domestic judgments when those courts 
possessed jurisdiction over the matter in question. 

The provision under consideration, which also formed 
a part of the Articles of Confederation, is one of the most 
important features of the organic law in that while the 
independent and final jurisdiction of each State is main- 
tained within its own borders, the confusion and other 
evils that would follow from the continuous conflict and 
opposition of the laws and judicial proceedings of a large 
number of intimately associated commonwealths are here- 
by avoided. " Under such circumstances it could scarcely 
consist with the peace of society, or with the interest and 
security of individuals, with the public or with private 
good, that questions and titles once deliberately tried and 
decided in one State, should be open to litigation again 
and again, as often as either of the parties should choose 
to remove from one jurisdiction to another. It would 
occasion infinite injustice, after such trial and decision, 



THE CONSTITUTION. 35 I 

again to open and re-examine all the merits of the case. 
It might be done at a distance from the original place of 
transaction ; after the removal or death of witnesses, or 
the loss of other testimony ; after a long lapse of time, 
and under circumstances wholly unfavorable to a just 
understanding of the case." ' 

In 1790, Congress provided that "the acts of the legis- 
lature of any State or Territory, or of any country subject 
to the jurisdiction of the United States, shall be authenti- 
cated by having the seal of such State or Territory, or 
of any such country affixed thereto. The records and 
judicial proceedings of the courts of any State or Terri- 
tory, or of any such country, shall be proved or admitted 
in any other court within the United States, by the attes- 
tation of the clerk, and the seal of the court annexed, if 
there be a seal, together with a certificate of the judge, 
chief justice, or presiding magistrate, that the said attesta- 
tion is in due form. And the said records and judicial 
proceedings, so authenticated, shall have such faith and 
credit given to them in every court within the United 
States as they have by law or usage in the courts of the 
State from which they are taken." 2 

But in order that a judgment given in one State may 
be conclusive upon the courts in another, the court ren- 
dering it must have jurisdiction both of the subject mat- 
ter and of the parties to the suit ; hence, even though 
the judgment of a court in one State has been certified 
according to the statute to a court in another, the latter 
court may inquire whether this judgment is within the 



^tory, Commentaries on the Constitution, Sec. 1303. 
* 2 Rev. Statutes, U. S., Sec. 905. 



352 OUR SYSTEM OF GOVERNMENT. 

jurisdiction of the former, and, determining it not to be, 
may set it aside. 

The statute, it will be noticed, gives the records and 
judicial proceedings of a State, when proved in the man- 
ner prescribed, the same effect in the courts of the United 
States that they would have in the courts of a sister 
State. 

The tendency of American courts at present is to 
modify the older and inconvenient doctrine in regard to 
the judgments of the courts of foreign nations, and, aside 
from questions of jurisdiction and of fraud, to accept 
them as conclusive. 

Sec. 2. l The Citizens of eacJi State shall be entitled to 
all Privileges and Immunities of Citizens in the several 
States. 

This section, in some respects, may be regarded as one 
of the most important provisions of the Constitution. If 
each State had the power to make laws discriminating 
against the citizens of other States within its limits, or 
against the business they might be transacting there, and 
this power were exercised, as experience has shown it 
undoubtedly would be, State jealousy and exclusiveness 
would soon lead to mutual retaliations of increasing bit- 
terness, and eventually result in the destruction of the 
Nation. 

As a result of this clause, in whatever part of the 
Union a citizen of any State may be, he feels that all his 
fundamental rights and privileges as a citizen are secure, 
and that in this regard he stands on the same plane with 



THE CONSTITUTION. 353, 

those about him, in short, that in leaving his State he has; 
not left his country. 

"What are the privileges and immunities of citizens in 
the several States? We feel no hesitation in confining 
these expressions to those privileges and immunities which 
are in their nature fundamental; which belong of right 
to the citizens of all free governments ; and which at all 
times have been enjoyed by the citizens of the several 
States which compose this Union, from the time of their 
becoming free, independent, and sovereign. What these 
fundamental principles are, it would, perhaps, be more 
tedious than difficult to enumerate. They may, however, 
be all comprehended under the following general heads : 
protection by the government; the enjoyment of life and 
liberty, with the right to acquire and possess property of 
every kind, and to pursue and obtain happiness and 
safety ; subject nevertheless to such restraints as the gov- 
ernment may justly prescribe for the general good of the 
whole. The right of a citizen of one State to pass 
through or reside in any other State, for purposes of 
trade, agriculture, professional pursuits, or otherwise ; to 
claim the benefit of the writ of habeas corpus ; to institute 
and maintain actions of any kind in the courts of the 
State ; to take, hold, and dispose of property, either real 
or personal ; and an exemption from higher taxes or 
impositions than are paid by the other citizens of the 
State, — may be mentioned as some of the particular 
privileges and immunities of citizens, which are clearly 
embraced by the general description of privileges deemed 
to be fundamental." 1 



1 4 Wash. Circuit Court, p. 380. 



354 0UR SYSTEM OF GOVERNMENT. 

There are, however, rights and privileges which, from 
their nature, must be held to be of a local, rather than of 
a general character, and hence, as not coming within the 
scope of this constitutional provision; e. g., the privilege 
of voting or of serving as a public officer, which a State 
must as a matter of sound policy restrict to its own citi- 
zens.; also as the public property of a State is but the 
property of its citizens collectively, the right to its use 
may properly be confined to them alone ; hence, State 
laws discriminating against those not its own citizens in 
the matter of fishing in its waters, or in making use of its 
river beds for the purpose of building fish-weirs or estab- 
lishing oyster beds, would not be held as conflicting 
with the Constitution. 

In cases that have been brought before it, the Supreme 
Court has uniformly declined to lay down any general 
rule distinguishing the privileges and immunities that are 
within the scope of this section from those that must be 
regarded as essentially local or special in their character, 
preferring to decide each question of this nature as it may 
arise according to its circumstances and on its own merits. 

2 A Person charged in any State with Treason, Felony, or 
other Crime, who shall flee from Justice, and be found in 
another State, shall on Demand of the executive Authority 
of the State from which he fled, be delivered up to be 
removed to the State having Jurisdiction of the Crime. 

The authority of a nation does not extend beyond its 
own territory ; hence, the officers of one country in which 
a person has committed a crime are not permitted to fol- 



THE CONSTITUTION. 355 

low him into another and arrest him there. In order that 
the fugitive may be returned for trial and punishment, the 
government within whose jurisdiction he has taken refuge 
must extradite him ; that is, on proper requisition being 
made, arrest and surrender him to the government of the 
country against whose laws he has offended. As between 
two nations, the extradition of criminals is a matter of 
treaty regulations, and a fugitive from one will not be 
surrendered by the government of the other unless these 
treaty regulations specifically make the offense extra- 
ditable. 

'This general rule admits of exception in a few instances 
where the criminal may be surrendered as a matter of 
courtesy or comity. Nations, however, on grounds of 
sound public policy and of humanity, do not ordinarily 
include offenses of a political nature among those which 
they make extraditable ; but assassinations, even if the 
professed object is a political one, come as much within 
the scope of a treaty regulation providing extradition for 
the crime of murder, as if they had been committed for 
purposes of robbery ; like considerations apply to other 
great offenses whose heinousness is out of proportion with 
the influence they exert in attaining any political end. 

In order to secure the extradition of a fugitive criminal 
from this country, a complaint must be made on oath 
before a Federal justice or judge, or a commissioner of 
the United States authorized so to act by a Federal court, 
or a judge of a State or Territorial court of record, charg- 
ing this person with having committed a specified extra- 
ditable crime within the jurisdiction of a foreign country. 
A warrant for the arrest of the accused is then issued, and 



356 OUR SYSTEM OF GOVERNMENT. 

if on a hearing, or trial of a preliminary nature, the judge 
or commissioner deems it probable that he is guilty of the 
offense charged against him, he commits him to jail and 
certifies the results of the proceedings to the Secretary 
of State. The Secretary of State may then order the 
accused to be surrendered to the officers of the country 
where the crime was committed on proper requisition 
being made. If the accused, however, remains in jail two 
months over and above the time necessary to remove him 
from the country, a judge of any Federal or State court 
may, on application being made, and with due notice 
to the Secretary of State, discharge the prisoner from 
custody, unless sufficient reason for not doing so can be 
shown. 

So far as jurisdiction and power are concerned, the 
governments of the different States in those respects in 
which they are not expressly or impliedly modified by 
the Constitution, bear the same relation to one another as 
do the governments of distinct and independent nations. 

Very early in the history of the country there was felt 
the need of extradition measures among the colonies, 
and those that were parties to the league calling itself 
" the United Colonies of New England," ' respectively 
pledged themselves to surrender fugitive criminals to one 
another upon the certificates of two magistrates of the 
individual colony out of which the wrong-doer had fled. 
The Articles of Confederation, also, contained an extradi- 
tion provision similar to that of the Constitution. 

The Constitution does not provide upon what officers 

'See p. 85. 



THE CONSTITUTION. 357 

of the State in which the criminal has taken refuge the 
demand for his extradition shall be made, nor in what 
manner the extradition itself shall be effected, but Con- 
gress in 1793 enacted that "whenever the executive au- 
thority of any State or Territory demands any person as 
a fugitive from justice, of the executive authority of any 
State or Territory to which such person has fled, and 
produces a copy of an indictment found or an affidavit 
made before a magistrate of any State or Territory, 
charging the person demanded with having committed 
treason, felony, or other crime, certified as authentic by 
the governor or chief magistrate of the State or Territory 
from whence the person so charged has fled, it shall be 
the duty of the executive authority of the State or Terri- 
tory to which such person has fled to cause him to be 
arrested and secured, and to cause notice of the arrest to 
be given to the executive authority making such demand, 
or to the agent of such authority appointed to receive 
the fugitive, and to cause the fugitive to be delivered to 
such agent when he shall appear. If no such agent 
appears within six months from the time of the arrest, the 
prisoner may be discharged." 1 

It will be noticed that there is no preliminary trial of 
the accused before any magistrate of the State in which 
he is arrested, as is the case in the extradition of criminals 
between nations ; in fact, the phraseology of the Consti- 
tution would seem to deny the existence of any discre- 
tionary power whatever in the matter of surrendering the 
fugitive upon proper demand being made. But although 



'Rev. Statutes, U. S., Sec. 5278. 



35^ OUR SYSTEM OF GOVERNMENT. 

the Constitutional provision is apparently mandatory, i. e. y 
in the nature of a command, and the statute prescribes 
what "shall be the duty" of the governor of the State 
when the demand is made, yet " looking to the subject- 
matter of the law, and the relations which the United 
States and the several States bear to each other, the court 
is of the opinion, the words ' it shall be the duty ' were 
not used as mandatory and compulsory, but as declara- 
tory of the moral duty which this compact (the Consti- 
tution) created. . . . The act does not provide any 
means to compel the execution of this duty, nor inflict 
any punishment for neglect or refusal on the part of the 
executive of the State ; nor is there any clause in the 
Constitution which arms the Government of the United 
States with this power." l Hence, the governor of a 
State, if he sees fit, may refuse to comply with a demand 
for the surrender of a criminal made upon him by the 
governor of another State ; but the line of duty is so 
clear, and so apparent are the evil effects of any great 
deviation from it to the State over which the offending 
governor presides, that the provisions of the Constitution 
and the law in this respect will be generally complied 
with, notwithstanding the absence of coercive power. 

3 No Person held to Service or Labour in one State, under 
the Laws thereof, escaping into another, shall, in Conse- 
quence of any Law or Regulation tlierein, be discharged 
from such Service or Labour, but shall be delivered up on 
Claim of the Party to whojn such Service or Labour may 
be due. 



'Kentucky vs. Dennison, 24 How., 66. 



THE CONSTITUTION. 359 

The persons to whom this clause mainly had reference 
were slaves, though it has been held that apprentices 
come within its scope. 

The condition of the colored people in the different 
States prior to the adoption of the Thirteenth Amendment 
in 1865, was determined by their respective constitutions 
and laws. 

At the very beginning of our National life, jealousy and 
suspicion between the free and the slave-holding sections 
became manifest, and in the Constitutional Convention 
more difficulty was met in reconciling their conflicting 
views and claims than arose from any other source. The 
present clause was made a part of the Constitution as a 
logical result of the recognized and legal establishment of 
slavery in certain of the States, and, like the preceding 
clauses of this Section, was intended to harmonize the 
different State systems, and to avoid occasion for bitter- 
ness and hard feelings. 

The application of this clause was limited to slaves 
"escaping" from the States in which they were held in 
bondage ; hence, in the event of a master carrying his 
slave into a free State for a longer or shorter time, the 
slave might become free, his former owner being unable 
to maintain possession of him there. This State, however, 
could not give to the person whom its laws had thus 
made free any standing or condition beyond its own 
jurisdiction, so if he left its limits, he was liable to be 
returned to his former condition of servitude, in case the 
laws of the State that he entered so provided. 

• In some of the free States, the laws and the courts 
recognized, as a matter of interstate comity, a right in an 



360 OUR SYSTEM OF GOVERNMENT. 

owner of slaves to retain possession of them while passing 
through their respective jurisdictions, but in others, any 
claim to the ownership of a human being within their 
borders was denied, except such as might arise from the 
above Constitutional provision. 

In 1793, Congress, in the same general enactment that 
provided for the extradition of criminals from one State 
to another, prescribed the manner in which this clause 
should be carried into effect. 

By this law, a slave who had escaped from the State or 
Territory where he was owned into another State or Ter- 
ritory, might be seized by his master or his master's agent 
and brought before a judge of a circuit or district court 
of the United States, or before a local magistrate, and if 
it could be proved to the satisfaction of this judge or 
magistrate that the person seized was a slave, as claimed, 
then a certificate should issue to this effect, which would 
be a sufficient warrant for removing the fugitive to the 
State or Territory from which he had fled. 

Penalties were also denounced by this act against such 
as should hinder the owner or his agent, in his efforts to 
secure possession of the slave, and against such as should 
harbor or conceal him after receiving notice of the fact 
that he was " a fugitive from labor." 

In 1850, this act was amended and made much more 
stringent. Certain of its provisions from their harsh and 
impolitic nature caused great excitement and irritation 
throughout the free States, whose legislatures in some 
instances passed laws forbidding their respective judicial 
and executive officers to assist in carrying out or giving 
effect to the obnoxious act, although by its terms they 



THE CONSTITUTION. 36 1 

were expressly authorized to do so. Such measures, 
were, of course, unconstitutional, and, to a certain extent, 
a defiance of National authority. 

"The Fugitive Slave Law" was but a phase in the long 
struggle which was then rapidly increasing in bitterness, 
and was soon to culminate in the Civil War. 

Sec. 3. l New States may be admitted by the Congress 
into this Union; but no new State shall be formed or 
erected within the Jurisdiction of any other State; nor any 
State be formed by the Junction of two or more States, or 
Parts of States, without the Consent of the Legislatives of 
the Spates concerned as well as of the Congress. 

The Convention in framing this clause was led by a 
logical and political necessity rather than by any historical 
precedent, It would have been contrary to the genius of 
the Constitution to have suffered the people in any part 
of the National domain then existing or thereafter to be 
acquired to remain in a permanent condition of political 
inferiority to the inhabitants of any other favored section 
or sections. Before this time, indeed, other nations had 
annexed territory and given to its people full rights 
as citizens ; such steps, however, had been taken as a 
matter of selfish interest, and usually through conquest; 
the new Republic was to incorporate and make an in- 
tegral part of itself, in a manner pre-determined by its 
organic law, and by the desire and will of their inhabi- 
tants, State after State, rivalling in the extent of their 
individual areas the great nations of Europe, until, with- 
out shock, or any appearance of revolution, the narrow 



362 OUR SYSTEM OF GOVERNMENT. 

strip of insignificant provinces along the Atlantic has 
become a vast empire of forty-five populous common- 
wealths stretching from ocean to ocean. 

The Articles of Confederation provided that " Canada 
acceding to this confederation, and joining in the meas- 
ures of the united states, shall be admitted into, and 
entitled to all the advantages of this union ; but no other 
colony shall be admitted into the same, unless such 
admission be agreed to by nine states." 

The other colonies here referred to, were undoubtedly 
British colonies, and not such as were or might be estab- 
lished within the boundaries of the new Nation. 

But notwithstanding the fact that the establishment of 
new States was not provided for in the Articles, Congress, 
in the " Ordinance for the Government of the Northwest 
Territory" passed in 1787, ordained that this Territory, 
which lay between the Ohio and the Mississippi rivers, 
should ultimately be formed into not less than three, nor 
more than five States. This ordinance, though clearly 
beyond the narrow range of the powers of the Congress, 
was everywhere accepted and approved as being both 
wise and necessary. Hence, in the framing of the Con- 
stitution, the need of some provision for the admission 
to the Union of the new commonwealths as they might 
grow up beyond the limits of the existing States was 
fully recognized and appreciated. "The general precau- 
tion that no new States shall be formed, without the con- 
currence of the federal authority, and that of the States 
concerned, is consonant to the principles which ought to 
govern such transactions. The particular precaution 
against the erection of new States, by the partition of a 



THE CONSTITUTION. 363 

State without its consent, quiets the jealousy of the 
larger States ; as that of the smaller is quieted by a like 
precaution, against a junction of States without their 
consent." l 

Congress has never attempted to make any general 
provision by law, determining the manner in which new 
States are to be admitted to the Union, deeming it safer 
and more politic to determine each case according to its 
own circumstances and conditions, thus maintaining a full 
discretion in this matter at all times. 

''States have been admitted, — (1.) where the people of 
a Territory of suitable size have, either by spontaneous 
action or in accordance with some territorial statute or 
executive proclamation, formed a constitution and elected 
officers to administer it, and presented the constitution to 
Congress and applied for admission under it; (2.) where 
Congress has first passed an enabling act, authorizing the 
people to form a constitution, prescribing rules of suf- 
frage and other conditions, and providing for the admis- 
sion of the State when the constitution should be adopted 
and the conditions complied with; (3.) when a consti- 
tution formed with or without previous congressional 
authority, has been presented to Congress, and that body 
has accepted it conditionally, requiring the consent of the 
people, evidenced in some form indicated, to some condi- 
tion precedent to the admission, such as the consent to 
yield some portion of the territory claimed, or some rule 
of suffrage established by the state constitution, &c." 2 

Congress, having the power to admit, has, of course, 



'Federalist, No. 43. 2 Coolej, Principles of Const. Law, p. 171 



364 OUR SYSTEM OF GOVERNMENT. 

the power to refuse admission when such refusal may 
seem wise or expedient. 

Admission was denied to Utah for a long time after it 
had ample population, from the general fear that polyga- 
my, which in the Territory could be legislated against 
and repressed by Congress, might, in the event of this 
Territory becoming a State, be recognized as lawful by its 
government, which would then have complete and final 
control of this matter. For even should a constitution 
presented to Congress for approval contain an express 
provision prohibiting this practice, when statehood had 
been once acquired, such a provision would be liable to 
repeal, for every State must stand on an equality with the 
others, and have as full power as they to change or 
amend its organic law. 1 

2 The Congress shall have Power to dispose of and make 
all needful Rules and Regulations respecting the Territory 
or other Property belonging to the United States; and 
nothing in this Constitution shall be so construed as to 
Prejudice any Claims of the United States or of any 
particular State. 

The Nation was the result of the Union of the thirteen 
English colonies, hence, originally possessed no territory 
distinct from theirs. Seven of the States coming into 
existence by the Declaration of Independence claimed 
the vast area that extended westward from the original 



*For the date of the admission of the different States that have 
become members of the Union since the adoption of the Constitution, 
see the map at the beginning of this book. 



THE CONSTITUTION. 365 

thirteen to the Mississippi ; the less fortunate ones, how- 
ever, protested against such claims on the ground that 
great disadvantage would result to themselves through 
the monoply by the others of this great source of wealth 
and power which they, in fact, were doing as much to 
render available, as were those claiming the right to use 
it for their own exclusive benefit. 

In 1779, Congress, to quiet the growing discontent, 
urged upon Virginia, which had begun to dispose of its 
western lands, to desist from this course, and upon the 
other States with western territory to retain it until the 
close of the war. In February of the following year, 
New York surrendered to Congress all its territorial pos- 
sessions lying beyond the State limits ; encouraged by 
this, Congress in September urged upon all States having 
like claims, to make similar cessions in order to strengthen 
the Union and to place its finances on a stable basis. 
The six other States claiming western territory followed 
the generous example set by New York. North Carolina 
and Georgia, however, did not make their cessions until 
after the adoption of the Constitution, and it is in refer- 
ence to them that this clause provides that " nothing in 
this Constitution shall be so construed as to Prejudice 
the Claim of any particular State." 

As early as 1784, an ordinance was adopted, by the 
Congress of the Confederation providing for the division 
of all the territory, ceded or to be ceded, into States with 
boundaries as established by the ordinance. These States 
were severally authorized to adopt for their temporary 
government the constitution and laws of any one of the 
existing States, and provision was made for their ultimate 



366 OUR SYSTEM OF GOVERNMENT. 

admission by delegates into the Congress of the United 
States. This ordinance was superseded three years later 
by the " Ordinance of 1787." J 

Since the adoption of the Constitution, the general 
form of government adopted by Congress for the Terri- 
tories it has organized from time to time, has been a 
governor and judges appointed by the President by and 
with the advice and consent of the Senate, and a legisla- 
ture elected by the people. In several instances, how- 
ever, on account of the sparseness of the population, or 
as a matter of policy, Territorial governments have been 
constituted of an executive and judges appointed by the 
President, and legislative power given to them. 

In accordance with the spirit of our political institu- 
tions, Congress has framed the Territorial governments, 
when the nature of the case would permit, on the basis 
of local autonomy, as complete as would be consistent 
with the supremacy and general supervision of the Na- 
tional authority. The government of a Territory, how- 
ever, unlike that of a State, can in no case have an 
independent sphere of action. 

" The Territories are but political sub-divisions of the 
outlying dominions of the United States. Their relation 
to the general government is much the same as that 
which the counties bear to the respective States, and 
Congress may legislate for them as a State does for its 
municipal organizations." 2 

The act of Congress, determining the limits of a Terri- 
tory, and prescribing its form of government, etc., cor- 



] See p. 105 and Appendix. 

2 Bank vs. Yankton, 101, U. S., 132. 



THE CONSTITUTION. 367 

responds to the Constitution of a State, but Congress 
may, of course, modify this organic law as it may deem 
expedient or necessary. 

The government of a Territory is, then, but a creation 
and an agent of the National Government ; hence, the 
restrictions imposed by the Constitution upon the latter 
for the protection of the people of the United States 
against oppression or tyrannical action, may be appealed 
to by the citizens of a Territory for protection against 
their local governments, as they cannot be appealed to 
by the citizens of a State. 

The first great addition to the National domain as it 
was established by the treaty of peace with England in 
1783, was the " Louisana Purchase," so called. This was 
bought of France in 1803 for the sum of $15,000,000, it 
being sold to the United States by Napoleon, who was at 
that time first consul of the French Republic, through 
fear on his part that it might be seized and occupied by 
Great Britain. 

The Oregon territory was claimed by the United States 
in virtue of the discovery and partial exploration of the 
Columbia river in 1792, by Captain Gray of Boston. In 
1804-5, this claim was strengthened by the exploration of 
this section by an expedition sent out by the Government, 
under the leadership of Captain Lewis and Lieutenant 
Clark. In 181 1, an American colony, Astoria, was estab- 
lished in this region by a wealthy New York merchant, 
and in 18 19, in the same treaty by which " East and West 
Florida" were ceded for $5,000,000 to the United States, 
the southern and western boundary of the Louisana Pur- 



368 OUR SYSTEM OF GOVERNMENT. 

chase was definitely settled and made to extend from 4:he 
source of the Arkansas river " in latitude 42 north, and 
thence by that parallel of latitude to the South Sea." 

The north-western boundary, however, remained a 
source of constant irritation between this country and 
Great Britain until 1846, when it was agreed by treaty 
between the two nations that it should continue along the 
forty-ninth parallel to the middle of the channel that 
separates the continent from Vancouver Island, and 
thence by the middle line .of this channel to the Pacific. 
A question having arisen as to the particular channel 
meant, the matter was referred in 1871 to the Emperor of 
Germany for arbitration, and he decided in favor of the 
claim made by the United States. 

Texas, originally a part of Mexico, was colonized by a 
large number of Americans from the adjoining States, 
who, having established themselves here, revolted and set 
up a government of their own. After maintaining their 
independence for some time, they made application for 
admission into the Union as a State ; they were received 
in 1845, and war with Mexico soon followed as a conse- 
quence. At the close of this war, by the treaty of peace 
made at Guadalupe Hidalgo, the United States acquired 
another vast tract from Mexico, paying therefor the sum 
of $15,000,000. In 1853, the United States bought of 
Mexico for $10,000,000, the Mesilla valley, or, as it was 
afterwards known, the " Gadsden Purchase," so called 
from the name of the American commissioner who nego- 
tiated the matter in our behalf. 

In 1867, the United States purchased of Russia all her 



THE CONSTITUTION. 369 

possessions on the continent of America and the islands 
adjacent for $7,200,000. ' 

Sec. 4. l The United States shall guarantee to every 
State in this Union a Republican Form of Government, 
and shall protect each of them against Invasion; and 
on Application of the Legislature, or of the Executive 
(when the Legislature cannot, be convened) against domestic 
Violence. 

" In a confederacy founded on republican principles, 
and composed of republican members, the superintending 
government ought clearly to possess authority to defend 
the system against aristocratic or monarchical innovations. 
The more intimate the nature of the union may be, the 
greater interest have the members in the political institu- 
tions of each other ; and the greater right to insist, that 
the forms of government under which the compact was 
entered into, should be substantially maintained. 
As long . . as the existing republican forms are con- 
tinued by the States, they are guarantied by the federal 
Constitution. Whenever the States may choose to sub- 
stitute other republican forms, they have a right to do 
so, and to claim federal guaranty for the latter. The 
only restriction imposed on them is, that they shall not 
exchange republican for anti-republican constitutions." 2 

In whatever manner the " anti-republican " government 



'For the extent and boundaries of these acquisitions of territory as 
well as the cessions made to the Nation by the different States, see the 
map at the beginning of the book. 

federalist, No. 21. 
24 



1 



370 OUR SYSTEM OF GOVERNMENT. 

may be established, whether by a foreign enemy, or by 
the act of the people or a part of the people of a State 
in setting up an aristocratic or monarchical form of gov- 
ernment, or in forcibly preventing the legally elected 
State officials from exercising their constitutional powers, 
it becomes the duty of the United States to interfere and 
re-establish the pre-existing form of government. 

The protection of each State against invasion is implied 
in the very existence of the United States as a Nation, 
and the declaration that such protection shall be given 
means nothing more than that the Nation will protect 
itself ; an obvious truism, which scarcely needed to be 
expressed in its organic law. 

Ordinary cases of domestic violence, each State is sup- 
posed to manage with its own civil or, if need be, military 
forces ; it is only when the disorder passes or threatens to 
pass beyond its control, that the United States will, as a 
rule, be called upon to interpose. 

If the National Government were allowed of its own 
accord to interfere in every petty disturbance or disorder, 
on the pretext of " domestic Violence," the independence 
and autonomy of the individual States might thereby be 
greatly endangered. Experience has demonstrated, how- 
ever, that riots and insurrections may arise within the 
limits of a State, which are beyond its immediate power 
to suppress ; the fact that the United States may then be 
called upon to assist in establishing law and order, is a 
most reassuring guaranty that they will soon be restored. 

Although this section places certain duties upon the 
United States, it does not indicate on which branch of the 
Government they primarily devolve. 



THE CONSTITUTION. 37 1 

In a case before the Supreme Court of the United 
States, arising from the contest between two rival State 
governments in Rhode Island in 1841-2, this tribunal 
declared: — "It rests with Congress to decide what gov- 
ernment is the established one in a State. For, as the 
United States guarantee to each State a republican gov- 
ernment, Congress must necessarih/ decide what govern- 
ment is established in the State before it can determine 
whether it is republican or not. And when the senators 
and representatives of a State are admitted into the coun- 
cils of the Union, the authority of the government under 
which they are appointed, as well as its republican char- 
acter, is recognized by the proper constitutional authority. 
And its decision is binding on every other department of 
the government, and could not be questioned in a judicial 
tribunal." l 

In the years immediately following the Civil War, 
President Johnson attempted to rehabilitate the govern- 
ments in several of the southern States, in opposition to 
the policy and will of Congress. The authority of the 
President to take such steps was denied by the legislative 
branch, and his attempts in this direction formed the basis 
of one of the articles of impeachment preferred against 
him. 

At the present time, we may regard the doctrine laid 
down by the Supreme Court as above quoted, as the one 
established and generally recognized. 

In 1795, Congress provided that "in case of an insur- 
rection in any State against the government thereof, it 



'Luther vs. Borden, 7 Howard, 42. 



372 OUR SYSTEM OF GOVERNMENT. 

shall be lawful for the President, on application of the 
legislature of such State, or of the executive, when the 
legislature cannot be convened, to call forth such number 
of the militia of any other State or States, which may be 
applied for, as he deems sufficient to suppress such insur- 
rection ; or on like application, to employ for the same 
purposes, such part of the land or naval forces of the 
United States as he deems necessary." I 

The duty devolving by this law upon the President, 
may require him to pass upon the claims of two rival 
State governments ; undoubtedly, if Congress has directly 
or indirectly passed upon this same question, it is the 
duty of the President to abide by the determination thus 
made ; if, however, Congress has taken no action or atti- 
tude in regard to the matter, the President must suppress 
the would-be government whose claims, in his opinion, 
are not well founded, his course in so doing being sub- 
ject to modification or reversal by future action of the 
legislative branch. 

ARTICLE V. 

The Congress, whenever two-thirds of both Houses shall 
deem it necessary, shall propose Amendments to this Con- 
stitution, or, on the Application of the Legislatures of two- 
thirds of the several States, shall call a Convention for 
proposing Amendments, which, in either Case, shall be 
valid to all Intents and Purposes, as Part of this Constitu- 
tion, when ratified by the Legislatures of three-fourths of 
the several States, or by Conventions in three-fourths 



^ev. Statutes, U. S., Sec. 5297. 



THE CONSTITUTION. 373 

thereof, as the one or the other Mode of Ratification may 
be proposed by the Congress; Provided that no A mendment 
which may be made prior to the Year One thousand eight 
hundred and eight shall in any Manner affect the first and 
fourth Clauses in the Ninth Section of the first Article; 
and that no State, without its Consent, shall be deprived of 
if s eq?ial Suffrage in the Senate. 

That a way should be provided for amending the Con- 
stitution must be obvious to all. The changes that the 
future will bring in our life as a nation cannot be foreseen, 
and if, under the new conditions that are sure to come, 
the organic law could not be modified in a predetermined 
manner so as to meet the needs or protect the liberties of 
the people, or to enable the Federal Government to ade- 
quately discharge its duties as the Government of a great 
Nation, it would be disregarded as something outgrown, 
or modified or set aside by revolutionary violence, either 
of which contingencies would be disastrous, if not fatal 
to the Republic. 

"The mode of amending the Constitution preferred by 
the convention seems to be stamped with every mark of 
propriety. It guards equally against that extreme facility, 
which would render the Constitution too mutable ; and 
that extreme difficulty, which might perpetuate its dis- 
covered faults." l 

It is remarkable, considering the growth of our country 
in territory, population, and wealth, and in view of the 
great social and economic changes that the civilized world 



'Federalist, No. 43. 



I 



374 OUR SYSTEM OF GOVERNMENT. 

has undergone during the past hundred years, changes 
that have revolutionized the character of the governments 
of the nations of western Europe, that our Constitution 
has undergone essentially no change. To whatever ex- 
tent and in whatever manner our institutions may have 
been modified as a result of the marvellous growth of the 
Nation, they yet remain in harmony with that wonderfully 
devised instrument, which limits, but does not cramp, 
shapes, but does not crystalize, holds fast to the great 
principles of free government laid down by our forefathers 
in 1787, but opens broad the way for the realization of 
the highest and noblest ideals of liberty imaginable in 
any age. 

The provision in this clause, making the First and 
Fourth Clauses in the Ninth Section of the First Article 
irrepealable prior to the year 1803, was in the nature of a 
guaranty to the slave-holding States, which objected to 
giving " a power by which the articles relating to slaves 
might be altered by the States not interested in that 
property, and prejudiced against it." 

The provision establishing beyond amendment the equal 
representation of the different States in the Senate, was 
inserted to secure the smaller commonwealths against the 
possible desire of the larger ones to deprive them of this 
main safeguard to their independent existence. 

Nineteen amendments to the Constitution have been 
proposed by Congress ; of these, fifteen have been ratified 
by the requisite number of State legislatures. A con- 
vention of the people of the United States has never 
been called for the purpose of proposing amendments, 
and Congress has never called State conventions for the 



THE CONSTITUTION. 375 

purpose of considering those proposed, preferring to 
adopt the simpler method of referring them directly to 
the different State legislatures. 

ARTICLE VI. 

l All Debts contracted and Engagements entered into, 
before the Adoption of this Constitution, shall be as valid 
against the United States under this Constitution, as under 
the Confederation. 

Public debts and contracts of any kind, are the obliga- 
tions of the nation not of the government; hence, a 
change in the latter in no wise affects their validity, unless 
their payment in the one case or their observation in the 
other could not justly or rightfully be made under the 
new condition of affairs. For instance, had Texas while 
independent entered into treaty relations with any foreign 
power, these relations, together with any obligations they 
might have involved except that of actual debt, would 
have been dissolved when it became a State of the 
American Union ; likewise, should the government of a 
nation wrongfully attempt to perpetuate its power, or to 
overthrow the existing constitution, the debts contracted 
in such efforts would not be held to be binding by sub- 
sequent governments. 

No such conditions, of course, existed when the change 
was made from the government of the Articles of Con- 
federation to that of the Constitution, and this declaration 
was probably made a part of the organic law in order to 
quiet the fears that would naturally be engendered by this 
event in the minds of those to whom public debts might 



376 OUR SYSTEM OF GOVERNMENT. 

be due, and to strengthen as much as possible the 
National credit which at that time was lamentably weak. 

2 This Constitution ^ and the Laws of the United States 
which shall be made in pursuance thereof; and all Treaties 
made, or which shall be made, under the Authority of the 
United States, shall be the supreme Law of the Land; and 
the Judges in every State shall be bound thereby, any 
Thing in the Constitution or Laws of any State to the 
Contrary notwithstanding. 

By this clause, the character of the Constitution as the 
organic law of a Nation is expressly affirmed. It is very 
difficult to understand, especially when it is considered 
that the judicial power of the United States is made to 
44 extend to all Cases in Law and Equity arising under this 
Constitution," and hence, by necessary implication to the 
final interpretation of the Constitution in such cases, how 
the doctrine could have originated and been widely ac- 
cepted that this instrument was in the nature of a treaty 
between different nations, and that, accordingly, each 
State had the right to judge for itself as to the binding 
force of any measure passed by Congress. This doctrine 
first found definite expression in resolutions passed by the 
legislature of Kentucky in 1798 declaring certain enact- 
ments of Congress " not law, but altogether void and of 
no force." Again in 1832, a convention in South Caro- 
lina, summoned by the legislature of that State, passed 
44 an ordinance to nullify certain acts of the Congress of 
the United States, purporting to be laws laying duties and 
imposts on the importation of foreign commodities." 



THE CONSTITUTION. 377 

In the discussion in the Senate to which the latter 
attempt at nullification gave rise, the doctrines of State 
sovereignty and of National supremacy were definitely 
and concisely set forth by the greatest of their respective 
advocates, Calhoun and Webster. The propositions then 
laid down by each of these statesmen of the doctrines 
with which his name will always be associated may well 
be reproduced, for the conflict of these doctrines and of 
the tendencies resulting from them, after shaping the 
political history of the Nation for seventy years, finally 
culminated in the Great Civil War, which we may justly 
regard not only as the most important event in the his- 
tory of America, but as marking one of the great turning- 
points in the history of the world. 

The following are the resolutions offered by Mr. Cal- 
houn : — 

"Resolved, That the people of the several States com- 
posing these United States are united as parties to a con- 
stitutional compact, to which the people of each State 
acceded as a separate sovereign community, each binding 
itself by its own particular ratification ; and that the 
Union, of which the said compact is the bond, is a union 
between the States ratifying the same. 

Resolved, That the people of the several States, thus 
united by the constitutional compact, in forming that 
instrument, and in creating a general government to carry 
into effect the object for which they were formed, dele- 
gated to that government, for that purpose, certain definite 
powers, to be exercised jointly, reserving at the same time, 
each State to itself, the residuary mass of powers, to be 
exercised by its own separate government ; and that 
whenever the general government assumes the exercise of 



378 OUR SYSTEM OF GOVERNMENT. 

powers not delegated by the compact, its acts are unau- 
thorized, and are of no effect; and that the same govern- 
ment is not made the final judge of the powers delegated 
to it, since that would make its discretion, and not the 
constitution, the measure of its powers ; but that, as in all 
other cases of compact among sovereign parties, without 
any common judge, each has an equal right to judge for 
itself, as well as of the infraction, as of the mode and 
measure of redress. 

Resolved, That the assertions that the people of these 
United States, taken collectively as individuals, are now, 
or ever have been, united on the principle of the social 
compact, and as such are now formed into one nation or 
people, or that they have ever been so united in any one 
stage of their political existence ; that the people of the 
several States composing the Union have not, as mem- 
bers thereof, retained their sovereignty ; that the alle- 
giance of their citizens has been transferred to the general 
government; that they have parted with the right of 
punishing treason through their respective State govern- 
ments ; and that they have not the right of judging in 
the last resort as to the extent of the powers reserved, 
and, of consequence, of those delegated ; are not only 
without foundation in truth, but are contrary to the most 
certain and plain historical facts, and the clearest deduc- 
tions of reason ; and that all exercise of power on the 
part of the general government, or any of its depart- 
ments, claiming authority from so erroneous assumptions, 
must of necessity be unconstitutional, must tend directly 
and inevitably to subvert the sovereignty of the States, to 
destroy the federal character of the Union, and to rear 
on its ruins a consolidated government, without constitu- 
tional check or limitation and which must necessarily 
terminate in the loss of liberty itself." 

" Mr. Webster condensed into four brief and pointed 



THE CONSTITUTION. 379 

propositions his opinion of the nature of our federal gov- 
ernment, as being a government of a UNION in contradis- 
tinction to that of a League, and as acting upon Indi- 
viduals in contradistinction to STATES, and as being in 
these features discriminated from the old confederation. 

' I. That the constitution of the United States is not a 
league, confederacy, or compact, between the people of 
the several States in their sovereign capacities ; but a 
government proper, founded on the adoption of the 
people, and creating direct relations between itself and 
individuals. 

2. That no State authority has power to dissolve these 
relations ; that nothing can dissolve them but revolution ; 
and that, consequently, there can be no such thing as 
secession without revolution. 

3. That there is a supreme law, consisting of the 
constitution of the United States, acts of Congress passed 
in pursuance of it, and treaties ; and that, in cases not 
capable of assuming the character of a suit in law or 
equity, Congress must judge of, and finally interpret, this 
supreme law, so often as it has occasion to pass acts of 
legislation; and, in cases capable of assuming, and actu- 
ally assuming, the character of a suit, the Supreme Court 
of the United States is the final interpreter. 

4. That an attempt by a State to abrogate, annul, or 
nullify an act of Congress, or to arrest its operations 
within her limits, on the ground that, in her opinion, such 
law is unconstitutional, is a direct usurpation on the just 
powers of the general government, and on the equal 
rights of other States ; a plain violation of the constitu- 
tion, and a proceeding essentially revolutionary in its 
character and tendency.' " 1 



Benton, Thirty Years in the U. S. Senate, Vol. I., p. 339. 



380. OUR SYSTEM OF GOVERNMENT. 

Needless to say, the Civil War settled the great con- 
troversy beyond dispute, and the National Government 
within the sphere of its Constitutional activity is now 
universally recognized as supreme, and " may, by means 
of physical force, exercised through its official agents, 
execute on every foot of American soil the powers and 
functions that belong to it. This power to en- 

force its laws and to execute its functions does not dero- 
gate from the power of the State to execute its laws at 
the same time and in the same places. The one does 
not exclude the other, except when both cannot be exe- 
cuted at the same time. In that case, the words of the 
Constitution itself show which is to yield." * 

3 The Senators and Representatives before mentioned, and 
the Members of the several State Legislatures, and all 
executive and judicial Officers, both of the United States 
and of the several States, shall be bound by Oath or Affir- 
mation, to support this Constitution; but no religious Test 
shall ever be required as a Qualification to any Office or 
public Trust under the United States. 

This, together with the preceding clause, forms a fitting 
close to the Constitution. Not only the members of the 
National Government solemnly bind themselves " to sup- 
port this Constitution," but all the State officers, from the 
highest to the lowest, are required to take upon them- 
selves the same obligation ; a provision that still further 
enforces the supremacy and finality of the National Gov- 



'Ex parte Siebold, ioo U. S., 371, 



THE CONSTITUTION. 38 I 

ernment acting within the sphere of its Constitutional 
powers, and the corresponding subordination of the 
States. 

The first act of Congress after its organization in 1789 
was to provide for the form of the oath or affirmation 
required by this clause; it runs as follows: — 

" I, A. B. do solemnly swear, (or affirm) that I will 
support the Constitution of the United States." 

By act of Congress in 1862, all the members of this 
body and all Federal officers were required to declare in 
addition to the ordinary oath or affirmation to support the 
Constitution, that they had never borne arms against the 
United States. In 1865, this "test-oath" was by an 
additional enactment required to be taken by attorneys 
practicing in the United States courts ; it was held uncon- 
stitutional so far as it applied to those who had been in 
rebellion prior to the passage of the law as being ex post 
facto, and as purporting to inflict a punishment which 
executive clemency could not reach, and also as being of 
the nature of a " bill of pains and penalties." l 

The object of the latter part of the clause is to guard 
against any possible connection between the Church and 
the National Government. The evils and oppressions 
arising from this source scarcely needed to be urged 
upon the immediate descendants of the earlier American 
colonists. 

ARTICLE VII. 
The Ratification of the Conventions of nine States, shall 



'See p. 258. 



382 OUR SYSTEM OF GOVERNMENT. 

be sufficient for the Establishment of this Constitution 
between the States so ratifying the Same. 

The Constitution being ordained in the name of the 
people of the United States, it followed that for its estab- 
lishment their ratification was necessary. 

"The convention which framed the Constitution was 
indeed elected by the State legislatures. But the instru- 
ment when it came from their hands, was a mere pro- 
posal, without obligation, or pretensions to it. It was 
reported to the then existing Congress of the United 
States, with a request that it might ' be submitted to a 
convention of delegates chosen in each State by the peo- 
ple thereof, under the recommendation of its legislature, 
for their assent and ratification.' This mode of proceed- 
ing was adopted ; and by the convention, by Congress, 
and by the State legislatures, the instrument was sub- 
mitted to the people. They acted upon it in the only 
manner in which they can act safely, effectively and 
wisely, on such a subject, by assembling in convention, 
it is true, they assembled in their several States, and 
where else should they have assembled ? No* political 
dreamer was ever wild enough to think of breaking down 
the lines which separate the States, and of compounding 
the American people into one common mass. Of conse- 
quence, when they act, they act in their States. But the 
measures they adopt do not, on that account, cease to be 
the measures of the people themselves, or become the 
measures of the State governments. 

From these conventions the Constitution derives its 
whole authority. . . . The assent of the States in 



THE CONSTITUTION. 383 

their sovereign capacity is implied in calling a convention, 
and thus submitting that instrument to the people. But 
the people were at perfect liberty to accept or reject it ; 
and their act was final. It required not the affirmance of, 
and could not be negatived by the State governments. 
The Constitution, when thus adopted, was of complete 
obligation, and bound the State sovereignties." x 

The requirement as to the number of States whose 
ratification would be necessary to give the Constitution 
binding force, was a happy medium between that of the 
whole number, and that of a simple majority. Had the 
assent of all been required, any self-willed or obstinate 
State, even the smallest, might have put off indefinitely 
the establishment of the new government, to the great 
detriment and distress of the whole country, or, as after 
events showed probably would have been the case, might 
have destroyed altogether the possibility of the proposed 
Constitution being accepted ; on the other hand, had the 
ratification of but a simple majority of the States been 
required, that majority might have been composed of 
States whose inhabitants collectively were a decided 
minority of all the people of the country, in which event, 
their ratification would scarcely have been of conclusive 
force to the others ; or had the entire people been quite 
equally divided on the matter, civil war might easily have 
been the consequence, as the history of many of our 
sister republics on this continent shows only too plainly. 

North Carolina and Rhode Island not having ratified 
the Constitution until after the new government had gone 



'M'Culloch vs. Md. 4 Wheat., 316. 



384 OUR SYSTEM OF GOVERNMENT. 

into operation, the question of the relation of these two 
States to the Union became one of grave import. The 
Constitution did not, and in fact, could not, in the politi- 
cal conditions then existing, directly or by implication, 
make provisions for such an emergency ; hence, the ques- 
tion was one to be settled on the grounds of general 
public policy rather than on any constitutional or legal 
considerations. 

In July, 1789, a law was passed by Congress imposing 
a duty of fifty cents a ton on foreign ships. In Septem- 
ber, this was suspended as to North Carolina and Rhode 
Island until the middle of January, and in February, 
North Carolina having previously made her ratification, 
it was again suspended as to Rhode Island till the first of 
April. 

In May, a bill was passed by the Senate prohibiting 
commercial intercourse with Rhode Island, and a demand 
was made upon her for a sum of money as her propor- 
tionate part of the expense incurred in carrying on the 
war for independence. Before this bill became a law, 
however, Rhode Island ratified the Constitution. 

So far as the action of Congress goes, it indicates that 
had these two States stubbornly persisted in their course, 
they would have been brought into the Union, by peac- 
able means if they would have sufficed, but by sterner 
measures had they been necessary. 



THE CONSTITUTION. 385 

ARTICLES IN AUDITION TO, AND AMENDMENT OF, THE 
CONSTITUTION OF THE UNITED STATES OF AMER- 
ICA, PROPOSED BY CONGRESS, AND RATIFIED BY 
THE LEGISLATURES OF THE SEVERAL STATES PUR- 
SUANT TO THE FIFTH ARTICLE OF THE ORIGINAL 
CONSTITUTION. 

[ARTICLE L] 

Congress shall make no law respecting an establishment 
of religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech, or of the press; or the 
right of the people peacably to assemble, and to petition the 
Government for a redress of grievances. 

Although many of the colonies had been founded by 
those who had fled from the mother country to escape 
the persecution of the established church, the doctrine of 
religious freedom and toleration was by no means univer- 
sally accepted among them. Even after the successful 
issue of the war for independence there were frequent 
instances of legislation attempting to enforce religious 
teachings and the support of churches by State authority. 
The tendency towards more liberal and more just views 
was greatly strengthened in Virginia, when as a result of 
a bill introduced into the House of Delegates in 1784, for 
" establishing provision for teachers of Christian religion," 
there was passed another drafted by Jefferson " for estab- 
lishing religious freedom." This measure recited as a 
part of its preamble ''That to suffer the civil magistrate 
to intrude his powers into the field of opinion, and to 
restrain the profession or propagation of principles on 

25 



386 OUR SYSTEM OF GOVERNMENT. 

supposition of their ill tendency, is a dangerous fallacy 
which at once destroys all religious liberty, . . . that 
it is time enough for the rightful purposes of civil govern- 
ment for its officers to interfere when principles break out 
into overt acts against peace and good order." 

The lack of a guaranty against the establishment of a 
National church and against governmental interference in 
religious matters was one of the adverse criticisms made 
upon the Constitution after it was submitted to the peo- 
ple for their consideration, and New Hampshire, New 
York, Virginia, and North Carolina on ratifying this in- 
strument, strongly urged among other things that this 
defect should be made good by amendment. Accord- 
ingly, when the first ten amendments were proposed by 
Congress in 1789, the provision under consideration took 
the leading place. 

This amendment, while prohibiting Congress from mak- 
ing any law respecting the establishment of any religion, 
does not imply that the attitude or policy of the National 
Government in regard to matters of religious concern 
must be one of indifference or neglect. " No principle 
of constitutional law is violated when thanksgiving or 
fast days are appointed ; when chaplains are designated 
for the army and navy ; when legislative sessions are 
opened with prayer or the reading of the Scriptures, or 
when religious teaching is encouraged by general exemp- 
tion of the houses of religious worship from taxation for 
the support of State government. Undoubtedly the 
spirit of the Constitution will require, in all these cases, 
that care be taken to avoid discrimination in favor of or 
against any one religious denomination or sect; but the 



THE CONSTITUTION. 387 

power to do any of these things does not become uncon- 
stitutional simply because of its susceptibility to abuse." l 

The Christian religion, perhaps even more than any 
other factor, has been influential in shaping our civiliza- 
tion and in determining our present family and social 
relations ; hence, like every other great fact entering into 
our history and life as a people, it must often be recog- 
nized by our legislative bodies and our courts. 

"The moral sense is largely regulated and controlled 
by the religious belief ; and therefore it is that those 
things which, estimated by a Christian standard, are pro- 
fane and blasphemous, are properly punished as crimes 
against society, since they are offensive in the highest 
degree to the general public sense, and have a direct 
tendency to undermine the moral support of the laws, 
and to corrupt the community. . . . But it does not 
follow, because blasphemy is punishable as a crime, that 
therefore one is not at liberty to dispute and argue 
against the truth of the Christian religion, or of any 
accepted dogma. . . . Blasphemy implies something 
more than a denial of the truths of religion, even the 
highest and most vital. A bad motive must exist; there 
must be a wilful and malicious attempt to lessen men's 
reverence for the Deity, or for the accepted religion. 
But outside of such wilful and malicious attempt, there is 
a broad field for candid investigation and discussion, 
which is as much open to the Jew and Mahometan as to 
the professors of the Christian faith." 1 

Also "this freedom from restraint upon the exercise of 



'Coolev, Const. Limitations, p. 583. 



388 OUR SYSTEM OF GOVERNMENT. 

his religion does not permit one to break the law, and 
plead in his defense that his actions were in the exercise 
of his religion and according to the dictates of his con- 
science. Laws are made for the government of actions ; 
and while they cannot interfere with mere religious belief 
and opinions, they may with practices. Thus they pre- 
vent human sacrifices, burning alive on funeral, piles, 
plural marriages and the like. To permit such practices 
would be to make the professed doctrines of religious 
belief superior to the law of the land, and, in effect, to 
permit every citizen to become a law unto himself. Un- 
der such circumstances the government would exist in 
name only." l 

The history of England and of the American colonies 
in regard to matters pertaining to the right or liberty of 
individuals to freely express their opinions makes clear 
the significance and force of the second provision of this 
amendment. 

In England until 1694, new publications were pro- 
hibited unless approved by official licensers, and it was 
this practice, maintained even during the time of the 
Commonwealth, when the government, in name at least, 
was republican, that called forth Milton's famous "Areo- 
pagitica, a SpeecJi for the Liberty of Unlicensed Priiiting." 

In America a like condition prevailed. The General 
Court of Massachusetts in 1662 appointed two persons as 
licensers of the press, and prohibited the publication of 
any books or papers without their authority ; when Don- 
gan was sent from England as the governor of New York 



Reynolds vs. U. S., 98 U. S., 166. 



THE CONSTITUTION. 389 

in 1683, he was expressly instructed to allow no printing 
in that colony; and Governor Berkeley in Virginia ex- 
pressed his thankfulness that " there are no free schools 
nor printing," and his hope that they would not have 
them ''these hundred years; for learning has brought 
disobedience and heresy and sects into the world, and 
printing has divulged them, and libels against the best 
governments." 

Freedom of speech and of the press means the right of 
individual citizens to fully and freely express their opin- 
ions verbally or in print, being responsible, however, for 
any abuse of the liberty ; for this right does not carry 
with it immunity for vituperation or slander or for sedi- 
tious and treasonable attacks upon the government ; publi- 
cations and utterances of this nature cannot be anticipated 
and prevented by law, but when made may be punished 
as crimes, the trial by jury being a guaranty against any 
successful effort on the part of the government to stifle 
just criticism or fair expression of opinion. 

Inflammatory publications and speeches, tending to 
cause mob violence or to subvert social order, e. g., the 
harangues of anarchists, do not come within the protection 
of this amendment, which was made to protect liberty, 
not crime ; ordinarily, however, the civil authorities will 
not take decisive repressive measures unless the evil or 
danger be clear and immediate. 

The last provision of this amendment was probably 
suggested by a similar declaration in the " Bill of Rights," 
and by the express assertion of the right to petition the 
king and Parliament made by the colonists during the 



390 OUR SYSTEM OF GOVERNMENT. 

difficulties with the mother-country that led to the war of 
the Revolution. 1 

The right to present a petition, which, aside from the 
guaranty of this clause, must result from the very nature 
of a republican government, involves on the part of the 
department or branch of government to which it is ad- 
dressed the corresponding duty of receiving it and giving 
it such consideration as may seem fit and proper. Hence, 
it may well be questioned whether the resolve passed by 
the House of Representatives in 1838, declaring that all 
petitions concerning the abolition of slavery or the sale 
of slaves " be laid on the table, without being debated, 
printed, read, or referred, and that no further action 
whatever shall be had thereon," was not a direct violation 
of the right of the people to petition the government, 
here guaranteed. 

[ARTICLE II] 

A well-regulated Militia, being necessary to the security 
of a free State, the right of the people to keep and bear 
Arms, shall not be infrijiged. 

The great object of this provision is to preserve to the 
people the physical means of resisting usurpation or 
oppression ; hence, the arms here denoted are such as 
are fitted for warlike purposes and not those whose ordi- 
nary use is in brawls or assassinations : also the right to 
keep and bear arms here guaranteed, has reference to 
their possible military use ; so, without violation of this 

1 See p. 94. 



THE CONSTITUTION. 391 

clause, individuals may be restrained from carrying con- 
cealed weapons, or from carrying weapons openly in such 
a manner or under such circumstances as might endanger 
the peace and safety of the public. It is the right of the 
people to be prepared to maintain their liberty by force, 
not the opportunity for quarrelsome or aggressive indi- 
viduals to render themselves obnoxious or dangerous to 
their fellow-citizens, that is guaranteed by this amendment. 

[ARTICLE III.] 

No Soldier shall, in time of peace, be quartered in any 
house, without the consent of the Owner, nor, in time of 
war, but in a manner to be prescribed by law. 

In England it had long been the practice of tyrannical 
sovereigns to quarter soldiers upon such of their subjects 
as had incurred their displeasure by opposition to the 
royal will. The same means was also employed to 
maintain troops, when Parliament disapproving or mis- 
trusting the designs of the king refused to make provision 
for this purpose. The " billeting" of soldiers on private 
individuals was one of the many grounds of complaint 
against Charles L, and in the statute passed in 1628, 
commonly known as the " Petition of Right," in which 
this practice was forbidden, it was recited that "of late 
great companies of soldiers and mariners have been dis- 
persed into divers counties of the realm, and the inhabi- 
tants against their will have been compelled to receive 
them into their houses, and there to suffer them to 
sojourn, against the laws and customs of this realm, and 
to the great grievance and vexation of the people." 



392 OUR SYSTEM OF GOVERNMENT. 

By this amendment to the Constitution, the National 
Government cannot exercise the power to quarter troops 
in private houses against the consent of their owners, — the 
term "owners" in this connection being equivalent to 
" occupants," — except in time of war, and then only " in a 
manner to be prescribed by law," that is, in a manner that 
has been assented to by the direct representatives of the 
people, and that makes no distinction as to individuals. 

The protection guaranteed by this article does not 
extend to hostile territory held by our armies or even to 
a part of our own territory which from the nature of the 
case must be regarded as hostile; e. g., the southern 
States during the Civil War. 

[ARTICLE IV.] 

The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no Warrants shall 
issue, but 071 probable cause, supported by Oath or affii'rna- 
tion, and particularly describing the place to be searched, 
and the persons or things to be seized. 

• The right of individuals to be secure in their persons, 
houses, papers, and effects against searches and seizures 
on the part of executive officers acting without due 
authority of the law, has been from time immemorial a 
part of the common law of England, being, indeed, practi- 
cally asserted in the Magna Charta itself. 

A warrant is a written order issued by one having judi- 
cial authority, authorizing the executive officers of the 



THE CONSTITUTION. 393 

courts to make arrests, searches, or seizures, or do other 
like acts in aid of the administration of justice. 

Evidently, if warrants were issued of such a nature as 
to give to the officers acting under their authority discre- 
tion as to the person to be arrested, the house or place to 
be searched, and the papers and effects to be seized, or 
searched for, the door would be open to the most oppres- 
sive kind of vexations and abuses. 

Such a discretion, however, the general warrants issued 
in England, and the "writs of assistance" 1 issued in 
America purported to give. In the former country this 
objectionable practice was, in 1769, condemned as illegal 
by the courts, the Chief Justice, Lord Mansfield, declar- 
ing, — " It is not fit that the judging of the information 
should be left to the discretion of the officer; the magis- 
trate should judge and give certain directions to the 
officer;" the three other judges held such warrants to be 
bad, "believing that no degree of antiquity can give 
sanction to a usage bad in itself." 

By this amendment, then, a warrant issued by a judge 
of a Federal court authorizing a marshal of the United 
States to make a search and seizure, must contain such a 
definite description of the place to be searched and of the 
thing or things to be seized as will allow to the officer 
who executes it no discretion or choice. Also that war- 
rants may not be issued on false or frivolous pretexts, 
and thus become a source of unjust and vexatious annoy- 
ance, the Constitution requires that the judge before 
whom a complaint is made shall, before issuing a warrant, 

*See p. 89. 



394 OUR SYSTEM OF GOVERNMENT. 

satisfy himself that there is just ground for so doing; 
i. e., that there is " probable cause," and that the party 
making the complaint shall take oath that he believes it 
to be true. 

" Letters and sealed packages subject to letter postage 
in the mail can be opened and examined only under like 
warrant, issued upon similar oath or affirmation, particu- 
larly describing the thing to be seized, as is required 
when papers are subjected to search in one's own house- 
hold. The constitutional guaranty of the right of the 
people to be secure in their persons and papers against 
unreasonable search and seizures extends to their papers, 
thus closed against inspection wherever they may be." l 

This amendment also protects a person from being 
compelled to produce his private books before a court in 
order that they may be searched for evidence of some 
criminal action on his part, for " the ' unreasonable 
searches and seizures ' condemned in the Fourth Amend- 
ment are almost always made for the purpose of com- 
pelling a man to give evidence against himself, which in 
criminal cases is condemned in the Fifth Amendment; 
and compelling ' a man to be a witness against himself,' 
which is condemned in the Fifth Amendment, throws 
light on the question as to what is an ' unreasonable 
search and seizure ' within the meaning of the Fourth 
Amendment." 2 

If a person is to be arrested and his name is unknown, 
the warrant may be issued against him, by the best 
description the nature of the case will allow. "The 

*Ex parte Jackson, 96 U. S., 727. 
2 Boyd vs. U. S., 116 U. S., 616. 



THE CONSTITUTION. 395 

omission of the name, as a means of identification, is 
justified only on the ground of necessity ; and when this 
is not known the warrant must indicate on whom it is to 
be served in some other way, by a specification of his 
personal appearance, his occupation, his precise place of 
residence or of labor, his recent history, or some facts 
which give the special designation that the Constitution 
requires." : 

[ARTICLE V.] 

No person shall be held to answer for a capital, or other- 
wise infamous crime, unless on a presentment or indictment 
of a Grand Jury, except in cases arising in the land or 
naval forces, or in the Militia, when in actual service in 
time of War or public danger; nor shall any person be 
subject for the same offence to be twice put in jeopardy of 
life or limb; nor shall be compelled in any Criminal Case 
to be a witness against himself, nor be deprived of life, 
liberty, or property, without due process of law; nor shall 
private property be taken for public use, without just 
compensation. 

A capital crime is one punishable by death ; an " infam- 
ous crime " is one involving capital punishment or im- 
prisonment for a term of years in a prison or penitentiary. 

A grand jury 2 is a body of men taken, like a trial jury, 
from the community and sworn to inquire into offenses 
committed within their jurisdiction and to present to the 
court for trial those whom they have good reason to 
believe guilty of committing them. 



Garwood vs. Siphers, 20 Me., 466. 2 See p. 21. 



396 OUR SYSTEM OF GOVERNMENT. 

By the common law, a grand jury consists of not less 
than twelve, nor more than twenty-three men, of whom at 
least twelve must vote to indict or present a person sus- 
pected of an infamous crime, before he can be brought to 
trial. Congress has, however, by statute fixed the mini- 
mum number of the grand jury in the district and circuit 
courts of the United States at sixteen. 

An indictment is a written accusation, which the law 
requires shall be drawn up with the greatest care and 
accuracy, charging a certain person with having com- 
mitted a specified crime. This formal accusation is laid 
before the grand jury by the public prosecutor, in the 
Federal courts an United States attorney, and if the 
members of this body, or twelve of them, deem that the 
evidence presented justifies the indictment, it is endorsed 
as " a true bill ;" but if there does not seem to be sufficient 
ground for placing the accused on trial, the endorsement 
is " not found," or " not a true bill," or " ignoramus," 
i. e., we ignore it. 

A presentment is said to be made when the grand jury 
of its own accord and from its own knowledge, and with- 
out a formal indictment on the part of the public prose- 
cutor, charges a person with a certain criminal act, and 
presents him to the court for trial. This form of accusa- 
tion has quite generally fallen into disuse, although it may 
at any time be revived by a grand jury if it believes that 
the attorney for the government is remiss in his duty, or 
is wilfully and corruptly endeavoring to protect criminals 
from punishment. 

The proceedings before a trial, or petty jury differ 
essentially from those before a grand jury, the latter being 



THE CONSTITUTION. 397 

secret and practically one sided, ex parte, in their nature, 
even the party suspected of crime not ordinarily being 
allowed to appear in his own defense ; the object here is 
not to establish the fact of guilt or of innocence, but 
simply to determine whether or not a good and sufficient 
reason exists for bringing the accused to trial. 

The provision under consideration is a most efficient 
safeguard to the citizen in that it protects him from the 
oppression and persecution which might follow if the 
government could bring him to trial at any time upon 
unjust and baseless accusations, for as it is the duty of 
the grand jury to present to the court for trial those 
whom they hold to be offenders against the law, it is 
equally their duty to refrain from presenting those whom 
they have no good reason to believe guilty. 

The object and wisdom of the exception made from 
this constitutional guaranty are obvious. In the pressing 
necessities of war, the slow and careful procedure of civil 
law must give way to the more prompt and harsher trial 
by the military code. 

For the commission of an offense that does not rank as 
an infamous crime, a person may be brought before a 
court for trial by "information;" this consists in the pre- 
senting of a formal accusation drawn up in the same 
general manner as an indictment, but verified by some 
authorized officer, in the Federal courts a district attorney, 
instead of a grand jury. 

The expression "jeopardy of life or limb," signifies 
danger or peril of legal punishment, and a person is said 
to be in such danger "when he is put upon trial, before a 
court of competent jurisdiction, upon indictment or in- 



398 OUR SYSTEM OF GOVERNMENT. 

formation which is sufficient in form and substance to 
sustain a conviction, and a jury has been charged with 
his deliverance. And a jury is said to be thus charged 
when they have been impanelled and sworn. The de- 
fendant then becomes entitled to a verdict which shall 
constitute a bar to a new prosecution ; and he cannot be 
deprived of this bar by a nolle prosequi 1 entered by the 
prosecuting officer against his will, or by a discharge of 
the jury and continuance of the cause. 

If, however, the court had no jurisdiction of the cause, 
or if the indictment was so far defective that no valid 
judgment could be rendered upon it, or if by any over- 
ruling necessity the jury are discharged without a verdict, 
which might happen from the sickness or death of the 
judge holding the court, or of a juror, or of the inability 
of the jury to agree upon a verdict after reasonable time 
for deliberation and effort ; or if the term of the court as 
fixed by law comes to an end before the trial is finished ; 
or the jury are discharged with the consent of the de- 
fendant expressed or implied ; or if, after verdict against 
the accused it has been set aside on his motion for a new 
trial, or on writ of error, or the judgment thereon has 
been arrested, — in any of these cases the accused may 
again be put upon trial upon the same facts before 
charged against him, and the proceedings had will con- 
stitute no protection. But where the legal bar has once 
attached, the government cannot avoid it by varying the 
form of the charge in a new accusation ; if the first 
indictment or information were such that the accused 



*A motion by the prosecuting officer that the government "will not 
prosecute" the case further. 



THE CONSTITUTION. 399 

might have been convicted under it on proof of the facts 
by which the second is sought to be sustained, then the 
jeopardy which attached on the first must constitute a 
protection against a trial on the second." x 

As a result of this constitutional provision, which em- 
bodies an ancient doctrine of the English common law, 
and of the Roman law as well, a jury may, if they see 
fit, finally acquit an accused person, even though such 
acquittal involves a deliberate setting aside of the in- 
structions as to the law, that they have received from the 
presiding judge; "in this respect a jury are the judges 
of the law, if they choose to become so. Their judg- 
ment is final, not because they settle the law, but because 
they think it not applicable, or do not choose to apply it 
to the case. But if a jury find a prisoner guilty against 
the opinion of the court on the law of the case, a new 
trial will be granted. No court will pronounce a judg- 
ment on a prisoner against what they believe to be the 
law. On an acquittal there is no judgment; and the 
court do not act, and cannot judge, there is nothing 
remaining to act upon." 2 

The clause that prohibits the compelling of a person to 
be a witness against himself in a criminal case also affirms a 
common law right. Such compulsion can be effective only 
by working upon the fears or hopes of the accused or by 
the infliction of physical pain, the latter, as the history of 
the so-called judicial proceedings in many countries shows, 
being equivalent to torture. 

The employment of such means to convict accused 



'Coolej, Const. Limitations, p. 400. 
2 U. S. vs. Wilson, Baldw., 108. 



400 OUR SYSTEM OF GOVERNMENT. 

persons, which is as liable to extort a confession of guilt 
from the innocent as from the guilty, is not consonant 
with the dictates of reason or humanity, and hence, is 
justly condemned in our organic law as being opposed to 
the spirit of our free institutions. 

The following provision of this amendment is but 
another manner of expressing the declaration contained 
in the thirty-ninth section of the Magna Charta : — "No 
freeman shall be taken or imprisoned, or disseized, or 
outlawed, or banished, or any ways destroyed, nor will we 
pass upon him, nor will we send upon him, unless by the 
lawful judgment of his peers or by the law of the land." 

"The phrase 'due process of the law' in the United 
States Constitution, and in the constitutions of many of 
the States, and the phrase ' law of the land,' in the con- 
stitutions of others of the States .... have long 
had the same meaning. English political history is full 
of the strife between the crown and the people, the crown 
seeking to enlarge its irresponsible prerogatives, and the 
people insisting on fixed, and certain laws. The Magna 
Charta, and the various bills of rights, in which these 
phrases were used, were demanded from the kings, as 
safeguards against arbitrary action, against partial, or 
unequal decrees. 

The barons and people insisted on general laws, on 
uniformity, due process of law. They insisted on law 
however harsh, as better security than prerogative however 
indulgent. These phrases did not mean merciful, nor 
even just laws, but they did mean equal and general 
laws, fixed and certain. The solicitude was to preserve 
the property [and the person] of the subject from the 



THE CONSTITUTION. 4OI 

inundation of the prerogative. The English colonies in 
America were familiar with the conflict between customary 
law, and arbitrary prerogative, and claimed the protection 
of those charters. When they came to form independent 
governments, they sought to guard against arbitrary and 
unequal governmental action by inserting the same 
phrases in their constitutions. 

They insisted that all proceedings against the individual 
or his property, should be uniform and by general lav/." r 

The constitutional protection of the individual against 
deprivation of his property, unless by due process of that 
general and impartial law that affects all alike, apparently 
admits of one important exception, resulting from the 
necessary right of the government to take and hold 
private property in case the public exigencies demand 
such action or the public welfare is subserved thereby, 
We say " apparently admits," for, in fact, private property 
must be regarded as held by the individual, subject to the 
needs and necessities of the political organization of which 
he forms a part. 

The right of eminent domain, then, involves on the part 
of the government the power to take possession of and 
use, temporarily or permanently, the property of its sub- 
jects for public purposes. Familiar examples of the exer- 
cise of this power are the laying out and maintaining of 
highways across private holdings, and the taking of lands 
belonging to individuals for sites of forts, arsenals and 
post offices by the National Government. 

As in our system, there are two distinct governments, 



'Eames vs. Savage, 77 Me., 220. 
26 



402 OUR SYSTEM OF GOVERNMENT. 

each must for its own purposes possess the right oi 
eminent domain, since for each there exists " the absolute 
necessity that the means in the government for perform- 
ing its functions and perpetuating its existence should not 
be liable to be controlled or defeated by the want of con- 
sent of private parties, or of any other authority;" 1 but 
as on the State government devolves, in the main, the 
duty of making provision for the convenience and neces- 
sities of the citizens, it will be called upon to exercise this 
power much more frequently than will the Government of 
the Nation. 

Under proper restrictions, the Government may dele- 
gate the power of eminent domain to private corpora- 
tions, as, for instance, by granting to railroad companies 
the right to take and use certain lands on which to build 
their roads and stations. In case of such delegation of 
power, however, a public purpose must be subserved, 
otherwise, should the matter be brought before the 
courts, they would declare the grant unconstitutional and 
hence void, and the attempted taking to be trespass. If 
there is a public end to be attained, the courts will not 
inquire into the necessity or expediency of the grant; 
these are questions which the legislative body must 
determine for itself. 

In the event that the government, or the corporation 
which has been granted the right of taking possession of 
property under the power of eminent domain, cannot 
agree with the owner as to its value, proceedings for its 
condemnation must take place. These proceedings differ 



WCulloch vs. Md., 4 Wheat., 316. 



THE CONSTITUTION. 403 

in different States ; in some, the value of the property 
is assessed by commissioners, or by a special jury, 
and in others the right to a trial by an ordinary jury is 
established. 

Prior to 1888, Congress had passed no general law for 
giving effect to the power of the National Government to 
take private property for public uses, although provisions 
had been made for its exercise in certain cases and for 
special purposes. In that year, it was provided that the 
Secretary of the Treasury or any other officer of the 
Government who might be authorized to procure real 
estate for the public uses of the United States should be 
authorized to secure the same by judicial proceedings if 
necessary. The jurisdiction of these proceedings for 
condemnation was given by this act to the circuit or dis- 
trict court in which the land might be taken, and it was 
also provided that they should conform as nearly as 
might be to similar proceedings in the courts of the State 
in which they were brought. 

[ARTICLE VI.] 

In all crimi?ial 'prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of 
the State and district wherem the crime shall have been 
committed, which district shall have been previously ascer- 
tained by law, and to be informed of the nature and cause 
of the accusation; to be confronted with the witnesses against 
him; to have compulsory process for obtaining Witnesses in 
his favor, and to have the assistance of Counsel for his 
defence. 



404 OUR SYSTEM OF GOVERNMENT. 

The guaranty of the right of a speedy trial is not only 
a matter of justice to the person accused of crime, but is 
also a safeguard against possible governmental or official 
oppression arising from holding in imprisonment for an 
unreasonable length of time persons who might be arrested 
on false or frivolous charges made for this very purpose. 

The right to a public trial is also an essential safeguard 
against judicial tyranny, for by this means, the people are 
enabled to hold the officers of justice to a clear and 
definite responsibility for oppressive or otherwise wrong- 
ful conduct. 

The history of judicial procedure in every country 
plainly shows that the secret trial of persons accused of 
crimes, especially if the crimes are against the existence 
of the Government or against official personages, tends to 
official irresponsibility and consequent abuse of power. 
Such a system is contrary to the very genius of our insti- 
tutions, and is wisely prohibited in the Constitution. 

The district in which the accused is to be tried as 
"ascertained by law," is the Federal district within which 
the crime was committed. The original Constitution pro- 
vides that the trial of all crimes shall be within the State 
where they were committed; 1 this amendment limits the 
place of the trial to the particular judicial district. 

The object of this provision is that the accused shall 
not be deprived of the assistance and support of friends 
by being carried for trial to a distant place which, per- 
haps, might be selected by the officers of the government 
as being unfavorable for an acquittal. 



*See Art. III., Sect. 2, CI. 3. 



THE CONSTITUTION. 405 

A copy of the presentment or indictment of the grand 
jury, or of the information of the prosecuting officer 
must be furnished to the accused, and this informs him 
" of the nature and cause of the accusation." These 
papers, and especially the indictment and information, 
must be drawn up with great accuracy and certainty, 
stating in plain and exact language every element of the 
crime charged ; any ambiguity or uncertainty will render 
them defective. The accused has the right to know pre- 
cisely the nature of the offense for which he is charged 
that he may prepare his defense accordingly. 

That the accused shall have the right to be confronted 
with the witnesses against him is also an ancient rule ; 
but this rule, like nearly every other provision of the 
common law in favor of the person on trial was but 
poorly observed in England prior to the Revolution of 
1688. No less a personage than Sir Walter Raleigh was 
convicted and sentenced to death on testimony produced 
in writing and communicated to the jury, when the wit- 
ness himself might have been brought before the court 
at any time. 

If, however, a witness cannot be brought into court, or, 
can be present only with great difficulty, or inconven- 
ience, his sworn testimony, or deposition, may be admitted 
as evidence. But before such testimony is taken, how- 
ever, the accused or his counsel must be seasonably noti- 
fied, so that he may be present, or submit written ques- 
tions to the witness, if he should wish to do so. 

The bringing of the witnesses face to face with the 
accused undoubtedly begets on the part of the former a 
greater sense of responsibility, while it affords to the 



406 OUR SYSTEM OF GOVERNMENT. 

latter an opportunity to question and to refute their evi- 
dence if it be false ; at the same time the jury, by observ- 
ing the bearing and demeanor of the witnesses, are better 
able to judge of their truthfulness. 

Strange as it may now seem to us, it was not until 
1696, that a person on trial for crime in England was 
allowed the assistance of counsel in his defense, though 
there might be arrayed against him the ablest lawyers 
of the kingdom. On points of law, and in the prepara- 
tion of his defense, the accused might receive advice and 
assistance, but at the trial he had to fight his battle 
unaided. The general condition was well illustrated by 
the historian Burnet by the declaration that in the time of 
Charles II., the Crown " had such advantages in trials of 
treason, that it seems strange how any person was ever 
acquitted." r 

Similar considerations apply to the right to have "com- 
pulsory process for obtaining witnesses in his favor," 
guaranteed to the accused by this amendment. With the 
prosecuting officers being able to compel the attendance 
of all who could give testimony against the accused, 
common fairness and humanity dictate that he should 
have an equal power in this respect, of establishing his 
innocence. 

Notwithstanding the free character of the political in- 
stitutions of early England, the judges in criminal cases 
seemed frequently to think it their duty to their sovereign 
to bring about convictions and to inflict punishments, it 
being held, in fact, as a doctrine, that the Crown, in 



Gurnet, History of his Own Times, Vol. II., p. 178. 



THE CONSTITUTION. 407 

whose name the prosecution was made, had an interest in 
securing a verdict of guilty. 

[ARTICLE VII.] 
See page 336. 

[ARTICLE VIII.] 

Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted. 

Bail is the releasing of a person from arrest on the con- 
dition that certain other persons together with himself 
give bond or security for his appearance when he may be 
summoned for trial. Legally, the person so released is 
committed to the charge of his sureties, who may, when- 
ever they see fit, relieve themselves of their responsibility 
by causing him to be re-arrested and surrendered into 
custody. 

When a person is charged with a crime the conviction 
for which would probably be followed by a sentence to 
death or to imprisonment for life, bail is refused, for the 
prospective loss of any amount of money, either on his 
own part or on the part of his sureties, through the for- 
feiture of the bail bond, would probably not induce him, 
if guilty, to present himself for trial. For lesser crimes, 
the bail should be made large enough to insure the 
appearance of the accused for trial, but not so large as to 
practically deny bail, in other words, as to be " excessive," 
for to needlessly hold a person in prison before his guilt is 
fully established is wrongful and oppressive. 

In determining bail, account is taken of the pecuniary 



408 OUR SYSTEM OF GOVERNMENT. 

condition of the accused, for a poor man may be as 
effectually held for trial by a security of a few hundred 
dollars, as a millionaire would be by a bond for many 
thousands; hence it is held to be "substantially a denial 
of bail, and a violation of the constitutional guaranty 
against excessive bail, to require a larger sum than, from 
his circumstances, the prisoner can be reasonably expected 
to give." ' 

The question as to the amount that constitutes a just or 
an excessive bail in any particular case, is one that is to 
be determined by the judicial officer that fixes it, subject 
to an appeal by the prisoner to the higher courts, if he 
deems his constitutional rights have been invaded. 

As this amendment is a prohibition solely upon the 
Government of the United States, it is obvious that the 
Federal courts cannot pass upon the reasonableness or 
unreasonableness of the amount of bail required by a 
State judge of a person charged with violating a State 
law, as it also follows from the fact of the independence 
and finality of the National judiciary that a State court is 
restrained from inquiring into a like exercise of judicial 
power on the part of a Federal judge. 

The guaranty against cruel and unusual punishments is 
one that will be rarely appealed to, at least with success, 
under a republican government, for the representatives of 
the people in the legislative branch will ordinarily be as 
prompt to condemn laws involving such punishments as 
will the members of the judiciary. 

Exactly what punishment may be regarded " as cruel 



United States vs. Bran, 7 Fed. Rep., 86. 



THE CONSTITUTION. 409 

and unusual" it is difficult, if not impossible, to de- 
termine ; the courts must pass upon each case on its 
own merits, as it comes before them. 

The revolting cruelties formerly practiced in the name 
of judicial punishment under the sanction of the com- 
mon law, as well as the disgrace of the whipping-post 
and the pillory, would undoubtedly be held as coming 
within the scope of this prohibition. 

Since this provision, like the others of a similar nature 
contained in the first ten amendments, is but a restriction 
on the National Government, the Federal courts are not 
authorized by it to pass upon the penalties denounced 
against crimes by the legislatures or the laws of any 
particular State. 

[ARTICLE IX.] 

The enumeration in the Cqnstitution, of certain rights, 
shall not be consulted to de7iy or disparage others retained 
by the people. 

As before set forth, the first ten amendments to the 
Constitution were made because of the fears that the 
National Government established by this instrument might 
prove dangerous to the security and liberty of the people. 
They were proposed shortly after the organization of the 
new government, and before the nature and limits of its 
powers had been clearly determined. The doctrine that 
it could exercise no powers but those expressly confided 
to it, was, indeed, generally accepted ; but this doctrine 
could only be established by the future, and the great 
object of these amendments was to anticipate and prevent 



41 OUR SYSTEM OF GOVERNMENT. 

encroachment upon those individual rights and liberties of 
which the maintenance is essential to the freedom of the 
people. 

It is a legal maxim, that exceptions to a power prove its 
existence, for if the power did not exist, exceptions to it 
would, of course, be impossible. This amendment denies 
the application of this maxim as regards the preceding 
amendments and those provisions of the original Consti- 
tution which are also in the nature of restrictions on the 
power of the general Government. Hence, another man- 
ner of stating the meaning of this amendment might be ; — 
The fact that the National Government is denied by the 
Constitution certain powers whose exercise would have 
infringed upon the essential rights and liberties of a free 
people, shall not be construed to mean that this Govern- 
ment would have had these powers even if these restric- 
tions had not been made, or that it has any powers at all 
of a like nature. 

[ARTICLE X.] 

The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people. 

This amendment but expressly declares a fact estab- 
lished by the provisions and general character of the 
original Constitution ; namely, that the National- Govern- 
ment can exercise only such powers as are expressly or 
impliedly delegated to it by this instrument. 

Of the powers which are neither expressly or impliedly 
delegated to the United States nor expressly or impliedly 



THE CONSTITUTION. 4 1 I 

prohibited to the States by the Constitution, the people 
have complete disposal, and they may confer them upon 
their respective State governments if they see fit, or pro- 
hibit the exercise of them by any governmental authority 
whatever; i. e., reserve them to themselves. Such a 
prohibition is set forth in the State constitutions as a " Bill 
of Rights," many of whose provisions are similar to those 
contained in the first eight amendments to the National 
Constitution. 

The wording of this amendment emphasizes the essen- 
tial difference between the government established by the 
Constitution and that provided by the Articles of Con- 
federation. The latter instrument declared that "each 
State retains its sovereignty, freedom, and independence, 
and every power, jurisdiction, and right, which is not 
by this confederation expressly delegated to the united 
states in congress assembled;" "but there is no phrase in 
the instrument [the Constitution] which, like the Articles 
of Confederation, excludes incidental or implied powers, 
and which requires that everything granted shall be ex- 
pressly and minutely described. Even the Tenth Amend- 
ment, which was framed for the purpose of quieting the 
excessive jealousies which had been excited, omits the 
word ' expressly,' and declares only that ' the powers not 
delegated to the United States, nor prohibited to the 
States, are reserved to the States, respectively, or to the 
people;' thus leaving the question, whether the particular 
power which may become the subject of contest has been 
delegated to the one government or prohibited to the 
other, to depend on a fair construction of the whole in- 
strument. The men who drew and adopted this amend- 



412 OUR SYSTEM OF GOVERNMENT. 

ment had experienced the embarrassment resulting from 
the insertion of this word in the Articles of Confederation, 
and probably omitted it to avoid these embarrassments." 1 



See page 333. 
See page 284. 



[ARTICLE XL] 
[ARTICLE XII.] 
[ARTICLE XIII. ] 



SECTION i . NeitJier slavery nor involuntary servitude, 
except as a punishment for crime whereof the party shall 
have been d?rfy convicted, shall exist within the United 
States, or any place subject to their juris dictio?i. 

SEC. 2. Congress shall have power to enforce this 
article by appropriate legislatio7i. 

African slavery was first introduced into America in 
1 619, when a Dutch man-of-war entered the James river 
and offered twenty negroes for sale. The purchase of 
these unfortunate beings by the colonists and the demand 
for more soon led a large number of English ship-owners 
and merchants to engage in the transportation of slaves 
from Africa to the New World ; before long this traffic was 
recognized and protected by law ; a statute of Parliament 
was enacted in 1695 declaring that " the trade is highly 
beneficial and advantageous to the Kingdom and the 
colonies." The inhuman traffic from this time on devel- 
oped so rapidly that several of the colonies, alarmed at the 



'M'Culloch vs. Md. 4 Wheat., 316. 



THE CONSTITUTION. 413 

increasing number of slaves, from time to time endeavored 
to restrict the importation of them, but all such attempts 
were disapproved and brought to naught by the English 
government. 

" Great Britain, steadily rejecting every colonial limita- 
tion of the slave-trade, instructed the governors, on pain 
of removal, not to give even a temporary assent to such 
laws ; and, but a year before the prohibition of the slave 
trade by the American congress, in 1776, the earl of 
Dartmouth addressed to a colonial agent these memorable 
words: 'We cannot allow the colonies to check, or dis- 
courage in any degree, a traffic so beneficial to the 
nation.' " l Hence, the justice of the complaint against 
the king, that Jefferson, himself a slave-holder, made a 
part of his first draft of the Declaration of Independence : 
" he has waged war against human nature itself, 
violating its most sacred rights of life & liberty in the per- 
sons of a distant people who never offended him, captivat- 
ing & carrying them into slavery in another hemisphere, 
or to incur miserable death in their transportation thither. 
This piratical warfare, the opprobrium of infidel powers, 
is the warfare of the CJiristian king of Great Britain 
determined to keep open a market where MEN should be 
bought and sold ; he has prohibited his negative for sup- 
pressing every legislative attempt to prohibit or restram 
this execrable commerce, and that this assemblage of 
horrors might want no fact of distinguished die, he is now 
exciting those very people to rise in arms among us, and 
to purchase that liberty of which he has deprived them 



Bancroft, Vol. II. p. 280. 



414 °UR SYSTEM OF GOVERNMENT. 

by murdering the people upon whom he also obtruded 
them." l 

That this denunciation did not appear in the Declaration 
of Independence as it was finally adopted by Congress, is 
due to the fact that the other members of the committee 
appointed to draft it deemed it prudent to omit this con- 
demnation of slavery in order to avoid discord, which at 
this time would have been fatal to the success of the 
colonial cause. 

At the outbreak of the Revolution, slavery was a 
recognized fact in all the colonies, but after independence 
was declared and when the work of framing new constitu- 
tions was entered upon by the different States, those in 
the North began to abolish slavery within their respective 
limits. At this time the leading statesmen of the country, 
of the South as well as of the North, looked upon slavery 
as a great evil ; many, indeed, hoped that this evil in time 
would quietly disappear ; but others, more far-sighted, 
saw in it the threat of future disaster. A considerable 
part of the Northwest Territory was ceded to the Con- 
federacy by the slave-holding State of Virginia, but in the 
Ordinance of 1787 for the government of this district it 
was provided, that "There shall be neither slavery nor 
involuntary servitude in the said territory, otherwise than 
in the punishment of crimes, whereof the party shall have 
been duly convicted." 2 As this clause undoubtedly 
reflected the moral sense of the people, so the clinging to 
the immediate profits arising from the existence of the 
wicked system appears in the immediately following 



'Jefferson's Works, Vol. I. p. 26. 2 Article 6. 



THE CONSTITUTION. 415 

proviso: — " provided, always, that any person escaping 
into the same, from whom labor or service is lawfully 
claimed in any one of the original States, such fugitive 
may be lawfully reclaimed, and conveyed to the person 
claiming his or her labor or service as aforesaid." 

The compromises of the Constitution on the subject 
of slavery have already been discussed ; after the adoption 
of this instrument, however, the line of division between 
the group of States that were characteristically slave and 
those that were essentially free was drawn. 

The growth of the free States in population surpassing 
that of the slave States, the latter were soon in a minority 
in the lower branch of Congress. Fearing that if the 
legislative power of the Nation should pass into the con- 
trol of the North, the existence of slavery would be 
endangered, the South bent its energies toward maintain- 
ing its power in the Senate. The purchase of the Lou- 
isiana Territory in 1 804 opened the way for the establish- 
ment of slave States in its southern part, but the extension 
of slavery to the north was resisted, and in 1820, Missouri 
was admitted as a slave State only on the condition that 
slavery should not exist elsewhere in the Territory north 
of the parallel of 36 degrees 30 minutes, the southern 
boundary of the new State. 

The next great land-mark in the struggle, which had 
constantly been increasing in bitterness, was the war with 
Mexico, which was begun and waged in the interests of 
slavery, its great purpose being to secure territory to the 
south and west which might in the future be carved up 
into new slave States. In 1850, the enactment of the 



41 6 OUR SYSTEM OF GOVERNMENT. 

Fugitive Slave Law 1 still further increased the public 
excitement and the hostile feelings between the two sec- 
tions, and from this time on events hastened to the final 
catastrophe. The results of the Mexican war not having 
met the expectations of the slave-holding part of the 
country, the gain of the single slave State of Texas hav- 
ing been offset by the admission of California as a free 
State, the repeal of the Missouri Compromise by Con- 
gress was effected in 1854. This repeal opened the 
whole vast territory of the Northwest to slavery or to 
freedom, according to the views of those who might take 
possession of it. The Territory of Kansas from its loca- 
tion was felt to be the key to the situation. It was recog- 
nized by both parties that if this Territory should be 
admitted into the Union as a free State, the progress of 
slavery to the north and west would be checked. Large 
numbers from the free States and from the slave States 
accordingly flocked thither, fully as much for political 
purposes as for actual settlement, and in 1856, the strug- 
gle between the contending factions broke out into open 
violence accompanied by bloodshed and destruction of 
property. In this contest, the opponents of slavery were 
finally successful, though Kansas was not admitted as a 
State until after the Civil War had broken out. 

In 1857, additional fuel was heaped on the fire by the 
decision of the Supreme Court of the United States in 
the famous Dred Scott case. In this case, which was 
undoubtedly originated for the purpose of effecting what 
actually resulted from it, Dred Scott, an old negro of St. 



'See p. 360. 



THE CONSTITUTION. 417 

Louis, was made to bring a suit for his freedom on the- 
ground that he had been carried by his master prior to 
the repeal of the Missouri Compromise of 1820 into 
territory made free by that law. 

A majority of the Supreme Court of the United States 
to which the case had been finally carried on appeal, 
declared, among other things, that the Missouri Compro- 
mise was unconstitutional, that the slave-owner had the 
right to carry and hold his slaves in any territory acquired 
by the United States beyond the original boundaries of 
the country, and that a person of African descent born in 
this country, whether slave or free was not a citizen of the 
United States. 

In i860, Abraham Lincoln was elected President on a 
political platform whose most important plank was a 
declaration against the further extension of slavery in the 
Territories, hence against the action of Congress in repeal- 
ing the Missouri Compromise, and against the decision of 
the Supreme Court in the Dred Scott case. This election 
was almost immediately followed by preparations on the 
part of several of the southern States to secede, and the 
war for the preservation of the Union was commenced by 
the bombardment of Fort Sumter by the insurgents on 
April 12, 1861. 

In April, 1862, Congress abolished slavery in the Dis- 
trict of Columbia, and in the following June took similar 
action in regard to the Territories. 

On September 22, 1862, President Lincoln issued a 
proclamation that on the first day of January of the 
following year all persons held as slaves within any State 
or designated part of a State whose people might be in 

27 



41 8 OUR SYSTEM OF GOVERNMENT. 

rebellion against the United States, should then be free, 
and on January I, 1863, he gave effect to this proclama- 
tion by another of similar tenor, declaring that he believed 
it "to be an act of justice warranted by the Constitution 
upon military necessity." Shortly after this, the slave- 
holding States that had remained loyal to the Union 
abolished slavery within their respective borders. 

The emancipation proclamation, so far as its authority 
or validity was concerned, was simply a military measure, 
and was legally justified as depriving the enemy of an im- 
portant means of carrying on the war, and as confiscating 
his goods. It affected, however, only those who were then 
slaves, the institution of slavery, as such, remained, for 
under the Constitution this was a matter with which the 
different States were alone competent to deal. " But the 
war being over, those who had succeeded in re-establish- 
ing the authority of the Federal government were not 
content to permit this great act of emancipation to rest on 
the actual results of the contest or the proclamation of 
the executive, both of which might have been questioned 
in after times, and they determined to place this main and 
most valuable result in the Constitution of the restored 
Union as one of its fundamental articles. . . Hence 
the thirteenth amendment. . . . The word servitude 
is of larger meaning than slavery, as the latter is popu- 
larly understood in this country, and the obvious pur- 
pose was to forbid all shades and conditions of African 
slavery." J 

The Thirteenth Amendment was declared to have be- 



'Slauffhter House Cases, 16 Wall., 68. 



THE CONSTITUTION. 419 

come a part of the organic law by a proclamation of the 
Secretary of State, dated December 18, 1865, and thus 
was finally destroyed the evil which from the very origin 
of the Nation had been a prolific source of contentions 
and discord between two great sections of our country, 
each of which is so necessary to the welfare and progress 
of the other. 

The second section of this amendment was added 
through excess of caution, for even had it not been ex- 
pressly granted, Congress would certainly have "power to 
enforce this article by appropriate legislation." 

[ARTICLE XIV.] 

Sec. 1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens 
of the United States a7id of the State wherein they reside. 
No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of 
life, liberty, or property, without due process of the law; 
nor deny to any person within its jurisdiction the equal 
protection of the laws. 

"This is one of a series of constitutional provisions 
having a common purpose ; namely, securing to a race 
recently emancipated, a race that through many genera- 
tions had been held in slavery, all the civil rights that the 
dominant race enjoyed. The true spirit and meaning of 
the amendments cannot be understood without keeping in 
view the history of the times when they were adopted, 
and the general objects they plainly sought to accomplish. 



420 OUR SYSTEM OF GOVERNMENT. 

At the time when they were incorporated into the Con- 
stitution, it required little knowledge of human nature to 
anticipate that those who had long been regarded as an 
inferior and subject race, would, when suddenly raised to 
the rank of citizenship, be looked upon with jealousy and 
positive dislike, and that State laws might be enacted or 
enforced to perpetuate the distinctions that had before 
existed. Discriminations against them had been habitual. 
It was well known that in some States laws making; 
such discriminations then existed, and others might be 
expected. 

The colored race, as a race, was abject and ignorant, 
and in that condition was unfitted to command the respect 
of those who had superior intelligence. Their training 
had left them mere children, and, as such, they needed 
the protection which a wise government extends to those 
who are unable to protect themselves." J 

"The first section of the fourteenth article 
opens with a definition of citizenship, not only of citizen- 
ship of the United States, but citizenship of the States. 
No such definition was previously found in the Constitu- 
tion, nor had any attempt been made to define it by act 
of Congress. It had been the occasion of much discus- 
sion in the courts, by the executive departments, and in 
the public journals. ... It had been held by this 
court [the Supreme Court of the United States] in the 
celebrated Dred Scott case, that a man of African de- 
scent, whether a slave or not, was not and could not be a 
citizen of the United States. 



'Strauder vs. W. Va., ioo U. S., 303. 



THE CONSTITUTION. 42 I 

This decision, while it met the condemnation of some 
of the ablest statesmen and constitutional lawyers of the 
country, had never been overruled ; and if it was to be 
accepted as a constitutional limitation of the rights of 
citizenship, then all the negro race who had recently 
been made freemen, were still, not only not citizens, but 
were incapable of becoming so by anything short^of an 
amendment to the Constitution." J This amendment was 
accordingly made, and by it the status of the colored 
people as "citizens of the United States, and of the 
State wherein they reside," was definitely and finally 
determined. 

The phrase "subject to the jurisdiction thereof," ex- 
cludes from the operation of this declaration, children 
born in this country whose parents are the public min- 
isters or consuls of other nations, or are aliens not per- 
manently residing here. This clause, also, does not make 
the native Indians citizens. " Subject to the jurisdiction 
thereof," means completely subject to the political juris- 
diction of the United States, and owing them direct and 
immediate allegiance. Indians born within territorial limits 
of this government, owing immediate allegiance to their 
respective tribes, are no more born within the United 
States and " subject to the jurisdiction thereof," within 
the meaning of the Fourteenth Amendment of the Federal 
Constitution, than the children of subjects of foreign 
nations, born within the dominion of those governments, 
or the children born within the United States of ambassa- 
dors or other public ministers of foreign nations. 2 

Slaughter House Cases, 16 Wall., 68. 
2 Elk vs. Wilkins, 112 U. S., 94. 



422 OUR SYSTEM OF GOVERNMENT. 

By the second clause of this section the distinction 
between citizenship of the United States and citizenship 
of a State is clearly recognized and established. A per- 
son may be a citizen of the United States by being born 
or naturalized within the District of Columbia or in a 
Territory, and yet not. be a citizen of a State; but a per- 
son whose parents are subject to the jurisdiction of the 
United States, born within the limits of a State, or a per- 
son there naturalized, is, of course, a citizen of the United 
States as w r ell as of the State. Each State, however, 
subject to the provisions of the first clause of this sec- 
tion, may determine the conditions of admission to its 
own particular citizenship. 

The " privileges and immunities " here protected against 
possible encroachment, are those pertaining to citizenship 
of the United States, those " arising out of the nature 
and essential character of the Federal government, and 
granted or secured by the Constitution." ' 

In short, this provision is a declaration that the guar- 
anties of personal rights and liberties made by the Fed- 
eral Constitution shall not be infringed by the different 
States ; a declaration seemingly superfluous, but perhaps 
necessary at the time when it was made to emphasize the 
fact that the colored people would be sustained by the 
National Government in their rights as citizens of the 
United States. 

The declaration in the Fifth Amendment that no person 

shall be " deprived of life, liberty or property without due 

process of the law," is construed, as we have seen, as a 

safeguard against abuse of power on the part of the 

'Duncan vs. Missouri, 152 U. S., 382. 



THE CONSTITUTION. 423 

National Government or any of its departments. The 
corresponding clause in the section under consideration 
provides a similar safeguard against the different State 
governments and at the same time lays upon the Govern- 
ment of the United States the ultimate responsibility of 
making it effective. 1 

This clause has reference solely to encroachments upon 
private rights by the State governments, and does not 
constitute any guaranty against the oppression of one 
individual by another. Such oppression, generally speak- 
ing, is to be prevented or punished by the governments 
of the different States, whose authority in this respect was 
in no manner affected by the adoption of this amendment. 

A further safeguard against the commission of unjust 
discrimination against any class of people by a State is 
the declaration that it shall not "deny to any person 
within its jurisdiction the equal protection of the laws.'* 
"This provision does not, any more than the one which 
precedes it, and which we have just considered, add any- 
thing to the rights which one citizen has under the Con- 
stitution against another. The equality of the rights of 
citizens is a principle of republicanism. Every republican 
government is in duty bound to protect all its citizens in 
the enjoyment of this principle, if within its power. That 
duty was originally assumed by the States, and it still 
remains there. The only obligation resting upon the 
United States is to see that the States do not deny this 
right. This the amendment guarantees, but no more." 2 



'As to the nature and meaning of this prohibition see the discussion 
upon the Fifth Amendment, page 400. 
2 U. S. vs. Cruikshank, 92 U. S., 542. 



424 OUR SYSTEM OF GOVERNMENT. 

SEC. 2. Representatives shall be apportioned among the 
several States according to their respective numbers, cotmt- 
ing the whole number of persons in each State, excluding 
Indians not taxed. But when the right to vote at any 
election for the choice of electors for President and Vice 
President of the United States, Representatives in Congress, 
the Executive and Judicial officers of a State, or the mem- 
bers of the Legislature thereof, is denied to any of the 
male inhabitants of such State, being twenty-one years of 
age, and citizens of the % United States, or in any way 
abridged, except for participation in rebellion, or other 
crime, the basis of representation therein shall be reduced 
in the proportion which the number of such male citizens 
shall bear to the whole number of male citizens twenty-one 
years of age in such State. 

The effect of the Thirteenth Amendment was to abolish 
slavery, and of the First Section of the Fourteenth to ren- 
der the freedmen citizens of the United States and of the 
different States in which they may reside. By these 
additions to the organic law, the " three fifths " provision 
of Clause 3, Section 2, Article I., of the original Constitu- 
tion ceased to have any effect, and the apportionment of 
representatives to Congress among the several States 
became according to the whole number of persons in 
each, " excluding Indians not taxed," for the former 
slaves were no longer " other persons." But the Nation 
having just emerged from the ordeal of a great civil war 
in which its very existence had been threatened, those 
upon whom rested the responsibility of determining the 
manner in which its results should be embodied in the 



THE CONSTITUTION. 425 

Constitution naturally preferred the definiteness and final- 
ity of a clear and positive declaration to the possibility 
that devious reasoning or some unforeseen interpretation 
might impair or destroy that which had cost so much. 
This declaration also served to emphasize the fact that 
the people explicitly recognized that the freedmen had 
become a constituent part of the body politic. 

The determination of the qualifications of those who 
may exercise the right of suffrage being left by the Con- 
stitution to the different States, the obvious purpose of 
the second clause of this section was to induce those in 
which slavery had existed to extend this right to their 
colored citizens by decreasing their representation in 
Congress in case of their failure to do so. 

Sec. 3. No person shall be a Senator or Representative 
in Congress, or elector of President and Vice President, or 
hold any office, civil or military, under the United States, 
or tinder any State, who, having previously taken a7i oath, 
as a member of Congress, or as an officer of the United 
States, or as a member of any State legislature, or as an 
executive or judicial officer of any State, to support the 
Constitution of the United States, shall have engaged in 
insurrection or rebellion against the same, or given aid or 
comfort to the enemies thereof. But Congress may by a 
vote of two-thirds of each House, remove such disability. 

This section was the result of the unfortunate struggle 
that arose shortly after the close of the war between the 
President and Congress on the subject of the reconstruc- 
tion of the southern States and the restoration of those 



426 OUR SYSTEM OF GOVERNMENT. 

who had been in arms against the National Government 
to the rights of citizenship. In this struggle the pardon- 
ing power was freely used by the President for the fur- 
therance of his policy or plans, 1 and Congress in framing 
this amendment for submission to the State legislatures 
inserted this section to restrain what was held to be an 
abuse of this power on his part. 

The power of the Executive to relieve from punishment 
those who had been engaged in the rebellion was left 
intact by this section, but the pardon granted by him 
could not restore to the persons described therein the 
right to hold any office under the United States or under 
a State, or to become a member of Congress or of a State 
legislature unless their disabilities should be removed by 
a vote of two thirds of each House of Congress, the reason 
for the discrimination against this class being that to the 
offense of insurrection against the National Government 
they had also added that of betrayal of a political trust 
which they had taken oath to faithfully discharge. 

This section was retroactive in effect and included those 
to whom executive clemency had already been extended ; 
but Congress has from time to time provided for the 
removal of the disabilities incurred, in some cases by 
general laws applying to certain classes, and in others by 
special acts to relieve designated individuals, so that all 
those now living who were in arms against the Union are 
restored to all the rights and privileges of full citizenship. 

SEC. 4. The validity of the public debt of the United 
States, authorized by law, including debts incurred for 



J See p. 304. 



THE CONSTITUTION. 427 

payment of pensions and bounties for services in suppress- 
ing insurrection or rebellion, shall not be questioned. But 
neither the United States nor any State shall assume or 
pay any debt or obligation incurred in aid of insurrection 
or rebellion against the United States, or any claim for the 
loss or emancipation of any slave; but all such debts, 
obligations and claims shall be held illegal and void. 

While the first clause of this section is a permanent 
constitutional guaranty of the validity of the general 
public debt of the United States, its main object was to 
place that part of it incurred in suppressing the rebellion 
beyond the reach of legislative action in case any future 
Congress should desire to repudiate or otherwise disavow 
it. 

Recognizing the fact that those who had been engaged 
in the rebellion must soon be restored to their full stand- 
ing as citizens, and, as such, have the same political 
powers and privileges as those who had remained loyal, 
this section guards against any possible tendency on their 
part to effect the payment of the debt incurred in the 
attempt to overthrow the National Government. Not 
only would such a payment either by the United States 
or by a State be a public recognition of the rightfulness 
of the attempt to destroy the Union, but it would be a 
direct encouragement to the renewal of the attempt and 
an assurance to those who might furnish money and 
means or otherwise assist in prosecuting it, that they 
would be reimbursed, if not rewarded, for the very harm 
they were accomplishing. 

As slavery was the cause of the rebellion that had 



428 OUR SYSTEM OF GOVERNMENT. 

brought so much suffering upon the country and entailed 
upon it so heavy a burden of debt, the slave-holders, who, 
generally speaking, had borne arms against the Govern- 
ment had no rightful claim whatever to reimbursement for 
the financial loss they suffered from the freeing of their 
slaves, and the possibility of such a reimbursement, which 
would have practically doubled the already enormous 
public debt, was wisely anticipated and provided against 
by this amendment. 

Sec. 5. The Congress shall have power to enforce, by 
appropriate legislation, the provisions of this article. 

See comment upon the corresponding section of the 
Thirteenth Amendment. 

The Fourteenth Amendment was submitted to the 
legislatures of the different States by a resolution of Con- 
gress passed June 16, 1866, and declared to be a part of 
the organic law July 28, 1868. 

[ARTICLE XV.] 

The right of citizeiis of the United States to vote shall 
not be denied or abridged by the United States or by any 
State on accoimt of race, color, or previous condition of 
servitude. 

The Second Section of the Fourteenth Amendment 
aimed at securing the right of suffrage to the colored 
people by providing that if it were denied to them by 
any State, the representation of that State in Congress 
should be decreased. The desired end, however, was not 



THE CONSTITUTION. 429 

attained by this provision, and Congress proposed the 
Fifteenth Amendment to the State legislatures. "The 
fifteenth amendment does not confer the right of suffrage 
upon any one. It prevents the States, or the United 
States, however, from giving preference in this particular, 
to one citizen of the United States over another on 
account of race, color, or previous condition of servitude. 
Before its adoption, this could be done. It was as much 
within the power of a State to exclude citizens of the 
United States from voting on account of race, etc., as it 
was on account of age, property, or education. Now it 
is not. If citizens of one race having certain qualifica- 
tions are permitted by law to vote, those of another hav- 
ing the same qualifications must be. Previous to this 
amendment there was no constitutional guaranty against 
this discrimination ; now there is. It follows that the 
amendment has invested the citizens of the United States 
with a new constitutional right which is within the pro- 
tecting power of Congress. That right is exemption 
from discrimination in the exercise of the elective fran- 
chise on account of race, color, or previous condition of 
servitude." r 

" Although this article gives no affirmative right to the 
colored man to vote, and is designed primarily to prevent 
discrimination by color, it is easy to see that under some 
circumstances it may operate as the immediate source of 
a right to vote. In all cases where the former slave-hold- 
ing States had not removed from their constitutions the 
words white men as a qualification for voting, this pro- 



'United States vs. Reese, 92 U. S., 214. 



430 OUR SYSTEM OF GOVERNMENT. 

vision did, in effect, confer on him the right to vote. 
In such cases this fifteenth article of amendment does 
substantially confer on the negro the right to vote, and 
Congress has the power to enforce that right." * 

Sec. 2. The Congress shall have power to enforce this 
article by approp?'iate legislation. 

See comments upon the Second Section of the Thir- 
teenth Amendment. 

The Fifteenth Amendment was submitted to the legis- 
latures of the several States by a resolution of Congress 
passed February 27, 1869, and was declared to be ratified 
in a proclamation of the Secretary of State, dated March 
30, 1870. 



Ex parte Yarborough, no U. S., 651. 








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PART II. 

CHAPTER I. 

THE SETTLEMENT AND EARLY HISTORY OF MAINE. 

The territorial claims of France in the New World, 
made in virtue of the discoveries of Cartier and others, 
conflicted with those of England, and as early as 1603, 
Henry IV., king of the former country, granted to Pierre 
de Monts a patent to all the lands lying between the 
fortieth and the forty-sixth degrees north latitude. This 
vast tract included what is now Nova Scotia, all New 
England except the northern part of Maine, New York, 
nearly all of Pennsylvania, and about half of New Jersey. 

In the early part of April, 1604, de Monts with two 
vessels under his command set sail for his new posses- 
sions. He first reached the mainland of America on the 
coast of Nova Scotia; thence he sailed southward, ex- 
plored the shores of the Bay of Fundy, and finally estab- 
lished a settlement on what is now known as Neutral 
Island, in the St. Croix river. Having decided to abandon 
this place, de Monts in the following year continued his 
explorations ; sailing along the coast of Maine as far as 
the mouth of the Kennebec river, he landed here, erected 

(431 ) 



43 2 OUR SYSTEM OF GOVERNMENT. 

a cross, and took possession of the country in the name 
of the king of France ; thence he sailed as far south as 
Cape Cod. He then returned to the St. Croix and trans- 
ferred his colony to the site of the present town of Annap- 
olis, to which he had given the name of Port Royal. 

In the following September, de Monts set sail for 
France, leaving a party behind to hold possession of the 
territory and to complete his explorations. 

In 1607, on the orders of de Monts, Port Royal was 
abandoned by the few who had remained there ; but three 
years later, Poutrincourt, to whom de Monts had granted 
this region, attempted to establish a new colony on the 
deserted site. Another settlement, to which the name of 
St. Sauveur was given, was also made in 161 3, at Mt. 
Desert, by Saussaye, an agent of Madame de Guerch- 
ville, to whom de Monts had surrendered his patent and 
who had also obtained a charter from the French king. 

Scarcely had this latter settlement been established, 
when the English at Jamestown determined to expel the 
French colonists as being intruders in Northern Virginia, 
and an armed vessel commanded by Argall soon ap- 
peared off St. Sauveur and made prisoners of all who 
were there ; a part of these unfortunate people were car- 
ried to Jamestown, and a part were compelled to seek in 
an open boat for some fishing vessel that might be willing 
to give them passage back to France. The same year 
(161 3) another expedition was sent back to complete the 
heartless work ; the houses at Mt. Desert and St. Croix 
were burned, and Port Royal was plundered and devas- 
tated, though not completely destroyed. 

At about the same time that the London Company was 



EARLY HISTORY OF MAINE. 433 

maturing its plans for the settlement in America that was 
afterwards to be known as Jamestown, 1 the Plymouth 
Company under the leadership of Sir Ferdinando Gorges 
was preparing to establish a colony in Northern Virginia. 
One hundred and twenty emigrants set out on this latter 
expedition under the leadership of George Popham and 
Raleigh Gilbert, the latter being a son of Sir Humphrey 
Gilbert and a nephew of Sir Walter Raleigh. 

On August 18, 1607, a landing was made, and the site 
of the settlement was fixed at the southern part of the 
peninsula at the mouth of the Kennebec river, that now 
constitutes the town of Phipsburg. After landing, the 
government of the colony was organized by reading the 
commission of George Popham as president and the laws 
established for it by the king, James I. ; five persons were 
also chosen to act as assistants to the president. The 
colonists immediately set to work and soon erected a sub- 
stantial fort, a storehouse, and about fifty log cabins. At 
first the outlook seemed promising, but the severity of 
the following winter, the death of three of the principal 
patrons of the colony, one of whom was President Popham 
himself, the hostility of the Indians, the destruction of the 
storehouse containing their provisions, and various other 
misfortunes rendered the condition of the colonists so 
deplorable, that the following spring they dispersed, some 
establishing themselves in little groups along the coast, 
others making their way to the settlement in southern 
Virginia, and others returning to England where Un- 
reported as the cause of their failure that the country was 



a See p. 35. 

28 



434 OUR SYSTEM OF GOVERNMENT. 

" intolerably cold and sterile, unhealthy, and not habitable 
by our English nation." 

In 1620, King James granted to a corporation com- 
monly known as the Council of Plymouth, or the Council 
for New England, a patent to the territory lying between 
the fortieth and the forty-eighth parallels, and extending 
from ocean to ocean. This grant, which practically super- 
seded that earlier made to the Plymouth Company, gave 
to the grantees power to settle and govern this great ter- 
ritory, and also the monopoly of the fisheries in the 
adjoining seas. This monopoly made the patent obnoxi- 
ous to the English people, and especially so to the pro- 
moters of the Virginia colony ; hence, there was a strong 
opposition to its continuance ; this, together with the fact 
that many members of the corporation seemed indisposed 
to share in the expense involved in establishing settle- 
ments, led Sir Ferdinando Gorges and John Mason to 
secure from the Council for New England a grant of a 
portion of this territory to themselves personally. 

In 1622, "a patent was given to Gorges and Mason, 
conveying to them the country between the Merrimac 
and the Kennebec to the farthest head of said rivers, and 
sixty miles inland, together with all the islands and islets 
within five leagues of the shore, which the indenture 
states, ' they intend to call the PROVINCE OF MAINE.' " l 

The year before this grant was made, Gorges, to push 



*Gen. J. L. Chamberlain, Maine: Her Place in History, p. 44. 

I am also indebted to this scholarly address for many other facts, 
and for valuable suggestions ; and to General Chamberlain personally, 
for his kind permission to make use of his map illustrating the terri- 
torial history of the State, in the preparation of the one in this book. 



EARLY HISTORY OF MAINE. 435 

the French from the northeastern territory by establishing 
Scotch settlements there, secured for Sir William Alexan- 
der, Earl of Stirling, a patent to all the lands lying east 
of the St. Croix river. To this district, which had hith- 
erto been known as Acadia, the patent gave the name of 
Nova Scotia. 

In 1627, Gorges and Mason divided the territory, Mason 
taking the portion between the Merrimac and the Piscata- 
qua. to which he gave the name of New r Hampshire, and 
Gorges, the part lying between the Piscataqua and the 
Kennebec, or the Sagadahock, as this river was then 
called. 

In 1635, the Council for New England, having resolved 
to surrender its patent into the hands of the king, made a 
new division of its territory among eight of its members. 
In making this distribution, however, it ordered that every 
one who had previously received lawful grants of lands or 
had lawfully established settlements, should continue to 
enjoy the same, it being required of them simply to 
recognize the ownership of the new proprietors by the 
payment of a small fee, and to give up to them the 
powers of government that they had before exercised. 

By this new patent Gorges was confirmed in his former 
possessions, which, by it, were made to extend sixty miles 
farther inland. The region between the Kennebec, the 
St. Croix, and the St. Lawrence, though claimed by the 
French as a part of Acadia, was now granted to Alexander 
as a compensation for the loss of Nova Scotia, which the 
king had ceded to France in 1632. 

The provision made by the Council for New England 
in favor of those who had lawfully received lands or estab- 



436 OUR SYSTEM OF GOVERNMENT. 

lished settlements was a necessary consequence of the 
many and often conflicting grants that this body had 
made, especially in Maine, for the patents it had issued to 
others than Gorges covered nearly all the territory between 
the Penobscot and the Piscataqua, and several settlements 
had already been established along the coast. 

As early as 1626, the colonists at Plymouth established 
a trading post at Pentagoet, now Castine; 1 two years 
later, they secured from the Council for New England the 
grant of a strip of land extending fifteen miles back from 
the Kennebec river on either side. This grant extended 
on the west bank of the river from the Cobbosseecontee 
stream, that flows through the present city of Gardiner, to 
the Androscoggin, and on the east bank, from the same 
latitude as this stream to the sea. 

The year 1626 is also frequently given as the date at 
which the settlement at Pemaquid was begun. It is prac- 
tically certain, however, that this colony, which was the 
earliest permanent one in the State, existed as a fishing 
and trading post long before this time ; indeed, there is 
good reason to believe that several families from the 
Popham colony took up their abode on this peninsula 
when that unfortunate undertaking was given up. 

About 1630, a settlement was begun at the mouth of 
the Saco river by Richard Vines, who had received a 
grant of land in this region. Two years later, another 
settlement established by George Cleeves and Richard 



*The Plymouth colonists held Castine until 1635, when they were 
dispossessed by a French expedition under D'Aulney de Charnisray. 
For many years after this, the Penobscot was tacitly accepted as the 
boundary between the English and the French possessions. 



EARLY HISTORY OF MAINE. 437 



Tucker on the peninsula where Portland now stands marks 
the beginning of this city. 

The most important grant made by the Council for 
New England out of the domain of Gorges was Lygonia, 
or, as it was more commonly known, the " Plough Patent," 
so called from the name of the vessel in which the col- 
onists intending to settle this tract came from England. 
This grant extended forty miles inland, and on the coast, 
from Cape Porpoise nearly to the Kennebec river, and 
included rights of government as well as of soil. 

The attempt to colonize this territory proving unsuc- 
cessful, the company dispersed, and the patent finally fell 
into the hands of a wealthy member of Parliament, and 
later became a source of much trouble to the heirs of 
Gorges. 

As soon as Gorges had been confirmed in his posses- 
sions by the grant of 1635, he began to arrange for the 
establishment of a government in his province, to which 
he gave the name of New Somersetshire. 

He appointed William Gorges, his nephew, to act as 
his deputy governor in America, and commissioned seven 
other persons from different parts of the province to act 
as councillors. The deputy governor and the councillors 
met at Saco, March 25, 1636, and thus constituted the 
first government of a general nature organized within the 
limits of our State. 

The government thus established exercised judicial as 
well as general governmental authority, but as its records 
do not extend beyond the year 1637, it is uncertain 
whether it remained in existence until the organization of 
the new system in 1640. 



43^ OUR SYSTEM OF GOVERNMENT. 

In 1639, Gorges secured a charter from Charles I., 
which again confirmed his claim to the territory pre- 
viously granted to him, that now for the first time, and 
officially, was designated as the " PROVINCE OF MAINE." 
By this charter, the district between the Piscataqua and 
the Kennebec, extending one hundred and twenty miles 
inland, was made a Palatinate, of which Gorges was the 
Lord Palatine ; that is, he was given royal powers over 
the province, which he held on feudal tenure from the 
king of England, practically as a king owing allegiance 
and duty to another king. 

In the year following, Gorges organized a government 
for Maine under his new charter. Thomas Gorges was 
appointed deputy governor of the province, and council- 
lors were commissioned as under the system established 
in 1635. This council, or court, exercised full govern- 
mental powers, legislative, executive, and judicial, in the 
name of " Sir Ferdinando Gorges, Knight, and Lord Pro- 
prietor of the Province of Maine." 

Besides this body, " commissioners were appointed from 
time to time in the different towns with powers similar to 
trial justices of the present day. Their jurisdiction in 
civil matters was limited to forty shillings, and an appeal 
lay to the higher court." x 

In 1 64 1, Gorges established the capital of his province 
at Agamenticus, which he incorporated the next year as a 
city under the name of Gorgeana. 

In 1643, the deputy governor, Thomas Gorges, sailed 
for England, leaving Richard Vines at the head of the 



'Gen. Charles Hamlin in the "Green Bag," Vol. VII., p. 457. 



EARLY HISTORY OF MAINE. 439 

government. Two years later at a meeting at Saco, the 
Court, " not having heard from Gorges," reappointed 
Vines as deputy governor for one year. 

This same year, Alexander Rigby, " a Parliament-man," 
on the representations of George Cleeves, who at this 
time was in England, purchased the abandoned " Plough 
Patent" and gave to Cleeves a commission to act as his 
deputy governor in administering its affairs. Cleeves 
returned to America as " Deputy President of the Province 
of Lygonia" and, as such, claimed jurisdiction over a 
large territory that was under the administration of Vines, 
the deputy governor of Gorges. Both parties referred 
the matter in dispute to the " Magistrates of Massachu- 
setts Bay," but as this body came to no other conclusion 
than to advise them to live peaceably with each other 
until they should receive a decision from some proper 
authority, in 1646 an appeal was taken in England to the 
Commissioners for foreign Plantations. 

When the struggle between Charles I. and Parliament 
had in 1642 broken out into open war, Gorges, as an 
ardent royalist, had unhesitatingly placed himself on the 
side of the king ; hence, as an enemy of the Long Par- 
liament, of which Rigby was an influential member, he 
was in no position to defend his claims, which the Com- 
missioners were not long in setting aside. As the result 
of this settlement of the controversy, Maine shrunk to 
the comparatively small part of the original province 
that lay to the southwest of the " Plough Patent." 

On learning of the death of Gorges which occurred in 
May, 1647, tne people of the few towns now constituting 
the Province of Maine wrote to his heirs for advice and 



44° OUR SYSTEM OF GOVERNMENT. 

directions ; but hearing nothing from them, they met in 
July, 1649, at Gorgeana and declared: — "We, with our 
free and voluntary consent, do bind ourselves into a body 
politic and combination to see these parts of the Country 
and Province regulated, according to such laws as have 
formerly been exercised, and such others as shall be 
thought meet, but not repugnant to the fundamental laws 
of our native Country." 

Edmund Godfrey was chosen governor of this little or- 
ganization, which maintained its existence until 1652, when 
the towns composing it were annexed to Massachusetts. 

When Cleeves appeared in Lygonia with his commis- 
sion as deputy governor from Alexander Rigby, the peo- 
ple quietly submitted to his rule ; the government thus 
established, however, was not to be of long duration. 

After the death of Rigby in 1650, dissensions sprung 
up, and two years later when his son Edward, who had 
inherited the province, sent a letter to its leading mem- 
bers, renouncing all the political power over it and com- 
manding them to desist from the exercise of any au- 
thority in his name, the government of the "Plough 
Patent" came to an end. The inhabitants of Saco and 
Cape Porpoise submitted with the towns of the shrunken 
Gorges province to Massachusetts, but the other settle- 
ments of Lygonia remained independent for several years 
longer. Of the inhabitants of the country lying to the 
east of Lygonia, those dwelling within the limits of the 
Kennebec Purchase generally recognized the authority of 
the government at Plymouth, but the rest were subject to 
no general governmental authority whatever. The terri- 
ritory east of the Penobscot was still in the hands of the 



EARLY HISTORY OF MAINE. 44 1 

French, who had practically taken possession of it in 
1635, when they expelled the Plymouth traders from 
Castine. 

The people Qf Massachusetts Bay had early seen that 
the possession by their colony of the vast domain stretch- 
ing to the northeast would be of the greatest advantage to 
themselves, and the confusion among its inhabitants that 
followed the death of Gorges and of Rigby seemed to 
offer them an opportunity to acquire the coveted territory. 

In 1 65 1, the government of Massachusetts set up a 
claim which, to say the least, was extremely ingenious. 
The charter granted to this colony in 1628 covered "all 
the lands within the space of three English miles to the 
Northward of the River Merrimeck or to the Northward 
of any and every part thereof." The meaning of this, 
hitherto accepted without question, was that the territory 
of Massachusetts extended three miles north of the Mer- 
rimac in its general direction from east to west. This 
river, however, at about thirty miles from the sea turns 
northward at a nearly right angle, and the General Court 
of Massachusetts, taking advantage of this fact, now con- 
tended that their charter covered all the territory south of 
a line drawn due east to the Maine coast from a point 
three miles north of the source of the Merrimac. 

The parallel of latitude settled upon as corresponding 
with this claim intersected the Maine coast about three 
miles east of the Casco peninsula. All the settlements 
south of this line submitted to Massachusetts without 
much complaint or delay. Edmund Godfrey at Gorgeana, 
which was now reduced to a town and re-named York by 
the authorities of Massachusetts, refused for some time to 



442 OUR SYSTEM OF GOVERNMENT. 

accept the new order of things, declaring: — "We will 
maintain our rights until it shall please the Parliament, 
the Commonwealth of England otherwise to order, under 
whose power and protection we are." The majority of 
the people, however, were differently inclined, and Godfrey 
was obliged to submit with the rest. 

In 1660, shortly after the restoration of the Stuart 
family to the throne of England, Ferdinando Gorges, the 
grandson of Sir Ferdinando, appealed to the king to make 
good his claim' as heir to Maine. He also sent his agent 
to the province, who appointed magistrates to act under 
his authority as proprietor ; but these attempts in Maine 
to establish the power of Gorges were, however, quickly 
checked by Massachusetts. 

In 1665, four commissioners appointed by Charles II. 
to investigate and regulate matters in New England visited 
Maine. From York they issued a proclamation to the 
inhabitants of the province requiring them to submit to 
the immediate government of the king, and forbidding 
both Massachusetts and Gorges to exercise any jurisdic- 
tion there until the royal pleasure should be further 
known ; for the control of the province in the meantime, 
a provisional government was established. 

In 1664, when the Duke of York, afterwards King James 
II., acquired the New Netherlands, he received a grant 
covering nominally all the territory lying between Pema- 
quid and the St. Croix, 1 but effective only as to the dis- 
trict between the Kennebec and the Penobscot. This 
grant, or rather, an indefinite part of it, was called the 

J See p. 66. 



EARLY HISTORY OF MAINE. 443 

County of Cornwall by its new proprietor, and in Septem- 
ber, 1665, the plantation of Sheepscot under the name of. 
Dartmouth was made its shire town. 

In 1668, commissioners were sent by Massachusetts to 
York accompanied by a military force. The magistrates 
of the provisional government were now dispossessed, and 
in two years the authority of the Puritan colony over 
Maine was practically restored. 

Naturally enough, Gorges again exerted himself to 
secure possession of his inheritance ; finally he obtained 
from the king orders to Massachusetts to send agents to 
England to answer to his claims and complaints. After 
a full hearing before the Court of Chancery, it was decided 
that Massachusetts had no claim either to New Hampshire 
or to Maine, and that the government of the latter be- 
longed to the heirs of Sir Ferdinando Gorges. Soon after 
this decision,- Massachusetts made a proposition to pur- 
chase the province, which Gorges accepted, and in March, 
1678, he transferred all his titles and powers over the 
" Province of Mayne " to that colony for the sum of 
£1250. 

The French, who were in possession of Acadia and of 
the territory to the west as far as the Penobscot river, 
extended their claims even to the Kennebec, notwith- 
standing the grant made to the Duke of York. As a 
result, much fear existed both in the County of Cornwall 
and in Massachusetts that the Duke would dispose of his 
profitless possessions to the king of France. To antici- 
pate such an act on his part, the General Court " doubt- 
ing (?) the accuracy" of the survey made twenty years 
previously, determined on a revision of their northern 



444 OUR" SYSTEM OF GOVERNMENT. 

boundary. This was accordingly made, and it was found 
to be six minutes farther north than it had hitherto been 
supposed to be. The new line to the Atlantic, " run 
more suitable to the exigency," now included in the pos- 
sessions of Massachusetts all the coast and islands of 
Maine as far as the Penobscot bay. 

Notwithstanding the opposition of the king, Massachu- 
setts, in February, 1680, assumed the exercise of the rights 
it had purchased from Gorges and framed a government 
for Maine in accordance with them. The government so 
constituted consisted of a president and a council of eight 
members appointed by the Board of Assistants of the 
Massachusetts Bay colony, and a House of Deputies 
elected by the people. Thomas Danforth of Cambridge, 
Deputy Governor of Massachusetts, was chosen president 
of the province, and in March of the same year entered 
upon his duties by proclaiming his authority »at York. 

Four years later, the charter of Massachusetts Bay was 
annulled by the king, James II. , and this colony, Ply- 
mouth, New Hampshire, Maine and, later, Rhode Island, 
were consolidated into a royal province and placed under 
the government of a president and fifteen councillors 
named by the king. 

In 1689, on the successful issue of the revolution in 
England, Andros, who had been appointed governor of 
New England by James II., was seized and imprisoned 
by the people of Boston. 1 Shortly after this, the govern- 
ment of Maine as it had been established by the General 
Court in 1680 was again restored, and Danforth was 
reappointed president of the province. 
] See p. 56. 



EARLY HISTORY OF MAINE. 445 

Two years later, came yet another change ; Massachu- 
setts Bay, Plymouth, the Province of Maine together with 
the defunct county of Cornwall, or Sagadahoc, the terri- 
tory east of the Penobscot and all Acadia, which had 
again fallen into the hands of the English, were con- 
solidated into the " Province of Massachusetts Bay." 
Five years later, however, Massachusetts ceded back to 
the crown all the district lying to the east of the St. 
Croix, it being unable to effectively govern and protect 
this distant region. 

Maine remained a part of the royal province thus 
established until the war of the American Revolution, 
and during this struggle and on the formation of a repub- 
lican constitution by Massachusetts, it remained a constit- 
uent part of that commonwealth. 

When the treaty of peace was made between Great 
Britain and the United States in 1783, the English com- 
missioners at first urged that the Piscataqua should form 
the eastern boundary of the new nation, while the Ameri- 
cans extended their claims as far as the St. John. The 
St. Croix, however, was finally agreed upon, since the 
territory lying between this river and the Piscataqua was 
an acknowledged part of Massachusetts at the beginning 
of the war for independence. 

The determination of the northern and north-eastern 
boundary was far more difficult. It was provided in the 
treaty that the line should be run due north from the 
head waters of the St. Croix, the particular branch not 
being designated, until it intersected the height of land 
that forms the divide between the St. Lawrence River 
and the Atlantic. Thence, the boundary line was to run 



446 OUR SYSTEM OF GOVERNMENT. 

along this ridge until it should reach the sources of the 
Connecticut. Afterwards, when it came to definitely set- 
tling the matter, the English insisted that only the streams 
flowing directly into the Atlantic were intended by the 
treaty, and hence, that the territory lying north of the 
height of land that separates the streams that flow into 
the Penobscot and the Kennebec from those flowing- 
northward and eastward into the St. John, belonged to 
Great Britain. On the other hand, the Americans main- 
tained that the Bay of Chaleur and the Bay of Fundy are 
Atlantic waters, and hence, that west of the due north 
line from the St. Croix, the divide between the streams 
flowing into these bays and the streams flowing into the 
St. Lawrence marked the true boundary. The American 
claim was practically conclusive from the fact that by 
no other interpretation could the reference to the St. 
Lawrence have any meaning whatever. 

After much negotiation between the two countries, in 
1827 the question of the disputed boundary line was 
referred to the king of the Netherlands to determine. 
His settlement of the matter did not accord with the 
claims of either nation, and was not accepted by the 
United States. The legislature of the State of Maine 
passed strong resolutions against the decision and the 
National Senate rejected a proposed treaty for carrying it 
into effect. 

In 1838, this dispute assumed a serious nature owing 
to a conflict of authority between Maine and New Bruns- 
wick. The bad feeling that had already long been exist- 
ing was intensified in 1837 by the arrest by the authori- 



EARLY HISTORY OF MAINE. 447 

ties of New Brunswick of an officer sent to the Madawaska 
region by Congress for the purpose of making a census 
of its inhabitants and of distributing among them as citi- 
zens of the United States their share of the surplus 
money which had accumulated in the National Treasury, 
and of which a general distribution was made that 'year. 

A few weeks afterwards the officer was released, but 
the excitement in Maine did not subside, and the next 
year the legislature authorized the raising of a small force 
to drive off the trespassers who were cutting lumber on 
the disputed territory. As a result of this action the 
governor of New Brunswick issued a proclamation de- 
claring that British territory had been invaded and order- 
ing out a thousand of the provincial militia. The legisla- 
ture of Maine immediately responded by ordering a draft 
of ten thousand men and raising eight hundred thousand 
dollars for the purpose " of prosecuting the war." Con- 
gress also passed an act authorizing the President to raise 
fifty thousand men to support Maine in case the gover- 
nor of New Brunswick should attempt to carry out his 
threat of maintaining exclusive jurisdiction in the disputed 
territory by force. 

General Scott was also sent to Maine for the purpose of 
quieting the excitement and acting as a mediator between 
the State and the provincial authorities until negotiations 
with Great Britian could be opened, and also with a view 
to his acquiring a knowledge of the military situation in 
case of war. 

Finally in 1842, the present boundary line of the State 
was decided upon as a compromise between the conflict- 



448 OUR SYSTEM OF GOVERNMENT. 

ing claims by the Webster-Ashburton treaty, so called 
from the statesmen who framed it. 

By this treaty Maine lost a part of the territory that she 
had hitherto claimed, but the United States received 
advantages in settling the boundary farther to the west 
that more than compensated the Nation as a whole for 
this loss, and the commissioners for Maine assented to 
the arrangement out of regard for the general interest of 
the whole country. 

As a matter of justice, however, the United States 
assumed the expenses of the "Aroostook War" and paid 
to the State in addition the sum of one hundred and fifty 
thousand dollars. 

Shortly after the treaty of peace by which Great Britain 
recognized the independence of her former colonies, the 
people of Maine began to agitate the question of the 
separation of this District from Massachusetts. 

The first definite move was made in September, 1735, 
when the Falmouth Gazette published the following 
notice: — "Agreeable to a request made and signed by 
a large and respectable number of persons to the printers 
of this Gazette, the inhabitants of the three counties of 
York, Cumberland, and Lincoln, are hereby notified, that 
so many of them as are inclined, or can conveniently 
attend, are requested to meet at the meeting house of the 
Reverend Messrs. Smith and Deane, in Falmouth, on 
Wednesday, the fifth day of October next, to join in a 
conference, then and there to be held, on the proposal of 
having the said counties erected into a separate govern- 
ment ; and if it should be thought best, to form some 
plan for collecting the sentiments of the people on the 



EARLY HISTORY OF MAINE. 449 

subject, and pursue some orderly and regular method of 
carrying the same into effect." J 

About thirty persons from Falmouth and the neighbor- 
ing towns met at the time and place designated in this 
notice. This body, however, did but little more than 
cause a circular letter to be forwarded to the different 
towns and plantations of the District " requesting them 
to send delegates to meet at said meeting-house on the 
first Wednesday of January next, at ten o'clock A. M. to 
consider the expediency of said counties being formed 
into a separate State, and if after mature consideration it 
should appear to them expedient, to pursue some regular 
and orderly method of carrying it into effect." 

The convention, which met in January in response to 
this call, adopted a statement of the grievances and diffi- 
culties which the people of Maine suffered as a result of 
their being under the government of Massachusetts ; this 
statement was sent to the different towns and plantations 
with the recommendation that they should choose dele- 
gates to another convention to be held at Falmouth on 
the following September, and also that they should "cer- 
tify to said convention the number of voters for and 
against said choice of delegates." 

The new convention, having met at the time and place 
appointed, named a committee to draft a petition to the 
General Court asking that body to give its consent to the 
formation of the " three eastern counties " into an inde- 



J For the greater part of the data concerning these early conventions, 
I am indebted to Perley's Debates as reproduced in the admirable 
compilation, the "Maine Constitutional Convention," edited by 
Charles E. Nash, Esq., of Augusta. 
29 



450 OUR SYSTEM OF GOVERNMENT. 

pendent State ; another committee was also appointed to 
draw up an address to the people. This address, which 
was a brief argument in favor of separation, called upon the 
people for a full expression of their opinion on the matter 
at issue, and asked each town and plantation "to meet for 
the purpose ; and transmit their doings to the convention 
at their adjournment." These steps being taken, the 
convention adjourned until the last Wednesday of the 
following January. When the convention reassembled, 
it found that of the ninety-three towns and plantations, 
only thirty-two had made the returns requested, and that 
of these, twenty-four were in favor of separation and 
eight against, the whole number of votes returned being 
but 994. 

Under these circumstances, and as there were but forty 
towns represented in the convention, on the thirty-first of 
January, after making another request for the people to 
express their will in this important matter, this body 
adjourned until the next September, (1788). The con- 
vention again assembled in September, but soon expired 
through the non-attendance of its members, all popular 
interest in the question having apparently died out. 

In 1793, the question of separation was again agitated, 
and several of the leading men of the District called for 
a convention to meet at Portland in December of this 
year. But few delegates appeared at this meeting, how- 
ever, and after passing resolutions to the effect that the 
counties of York, Cumberland, and Lincoln should be 
erected into a State independently of the counties l of 



'Incorporated in 1790. 



EARLY HISTORY OF MAINE. 45 I 

Hancock and Washington, it called for the assembling of 
a new convention composed of delegates from the towns 
and plantations of those three counties to meet at Port- 
land on the third of the next June. The convention 
thus provided for, assembled, drew up an address to the 
people, and adjourned until the second Tuesday of the 
following October, when, however, it failed to reassemble. 

In 181 5, at the close of the war with England, the 
question of separation from Massachusetts was again 
revived in Maine. The following year, the General Court 
in compliance with the numerous petitions that had been 
presented directed that meetings should be held on May 
20 in the different towns and plantations of the District 
for the purpose of determining the wishes of the people 
in regard to the matter. 

At these meetings, out of the 37,828 legal voters of 
Maine, only 16,894 voted, and of these, 10,393 voted in 
favor of separation. The number in the affirmative being 
less than two sevenths of the entire voting population, the 
General Court ordered a second vote to be taken in 
September of this year ; at the same time the towns were 
authorized to choose delegates to meet at Brunswick on 
the last Monday of the month for the purpose of counting 
the votes, and, in case five ninths of those cast were found 
to be in favor of separation, to form a constitution. 

The delegates, 185 in number, met at the place and 
time designated, and organized by choosing William King 
of Bath, president. When the votes were counted, it was 
found that the requisite five ninths had not been cast in 
favor of separation, 11,969 being in the affirmative, and 
1 1 ,347 in the negative, The convention, however, claimed 



452 OUR SYSTEM OF GOVERNMENT. 

that as. the aggregate majority of the different towns voting 
in the affirmative was 6,301, and the aggregate majority 
of the towns voting in the negative was but 4,409, the 
requirement of the General Court had been complied with, 
and proceeded to appoint one committee to -draw up a 
constitution and another to apply for admission into 
the Union ; having taken these steps, it adjourned until 
December. The General Court, however, on reassem- 
bling, naturally declared that "the convention had mis- 
construed the act," and put an end to its existence. 

Notwithstanding this failure, the agitation of the ques- 
tion still continued, and in June, 18 19, petitions for sep- 
aration having been received by the General Court from 
about seventy towns in Maine, this body authorized 
another vote to be taken on July 24, and provided that if 
the majority in favor of forming a separate State should 
exceed fifteen hundred, the Governor would be authorized 
to proclaim the result and to direct the towns at their 
September elections to choose delegates to a constitutional 
convention. 

On August 24, Governor Brooks made proclamation 
that the people of Maine had declared in favor of separa- 
tion by the requisite majority, the vote standing 9,954 
for separation, and 7,132, against. In accordance with the 
provisions of the act passed by the General Court, he also 
summoned the different towns of the District to elect 
delegates to meet in convention at Portland on October 
1 1, for the purpose of framing a constitution. 

The delegates chosen at % the September elections met 
at the time and place appointed and organized by electing 
William King, president, and Robert C. Vose, secretary. 



EARLY HISTORY OF MAINE. 453 

The proposed constitution was signed by the members 
of the convention on October 29, and submitted to the 
people to be voted upon in town-meetings to be held on 
December 6. This part of the task being complete, the 
convention adjourned until the first Wednesday of Janu- 
ary, 1820. 

On reassembling, the convention found that the consti- 
tution had been adopted by a vote of 9,040 yeas to 796 
nays. 

Application having been duly made by the convention 
for the admission of Maine into the Union, it was granted 
by the following act of Congress, approved March 3, 1 820: 

"WHEREAS, by an act of the state of Massachusetts, 
passed on the nineteenth day of June, in the year one 
thousand eight hundred and nineteen, entitled ' an act 
relating to the separation of the district of Maine from 
Massachusetts proper, and forming the same into a sep- 
arate and independent state,' the people of that part of 
Massachusetts, heretofore known as the district of Maine, 
did, with the consent of the legislature of the said state 
of Massachusetts, form themselves into an independent 
state, and did establish a constitution for the government 
of the same, agreeably to the provisions of said act, 
therefore, Be it enacted by the Senate and House of Repre- 
sentatives of the United States in Congress assembled, 

That, from and after the fifteenth day of March, in the 
year one thousand eight hundred and twenty, the state of 
Maine is hereby declared to be one of the United States 
of America, and admitted into the Union on an equal 
footing with the original states, in all respects whatever." 

Washington, March 3, 1820, — Approved. 

James Monroe. 



CHAPTER II. 

THE CONSTITUTION OF THE STATE OF MAINE. 

Much of the discussion upon the different sections and 
clauses of the Constitution of the United States applies 
equally well to the corresponding sections and clauses of 
our State Constitution, and wherever any part of the latter 
can be explained by reference to what has already been set 
forth in Part I., this plan has been followed for two 
reasons: — First, that brevity may be secured and repeti- 
tion avoided, and second, that the reader or student may 
the more fully appreciate by the comparison thus involved, 
how admirably the organic law of the Nation and the 
organic law of the State complement each other in form- 
ing a practically perfect system of government. 

In 1875, the original Constitution of Maine was modi- 
fied by incorporating in it the twelve amendments that 
had previously been made and nine others that were 
adopted when the codified form was ratified by the 
people. 

For the sake of clearness we shall discuss this codified 
form of the organic law of our State, rather than that in 
which it came from the hands of the convention of 18 19; 
but the changes that have been made, as well as the man- 
ner in which they were embodied in the original instru- 
ment will be pointed out and considered in due order. 

(454) 



THE CONSTITUTION OF MAINE. 455 

CONSTITUTION 

OF THE 

STATE OF MAINE, 

FORMED IN 

CONVENTION AT PORTLAND, OCTOBER 29, AND ADOPTED 

BY THE PEOPLE IN TOWN MEETINGS, DECEMBER 6, 

A. D. 1 8 19, AND OF THE INDEPENDENCE OF 

THE UNITED STATES THE FORTY-FOURTH, 

TOGETHER WITH THE 

XII Amendments Subsequently made Thereto, Arranged, as 
Amended, in pursuance of a Legislative Resolve of Feb- 
ruary 24, 1875, by the Chief Justice of the Supreme Judi- 
cial Court, the Honorable John Appleton, whose draft 
and arrangement was, by a resolve of february 23, 1876, 
approved by the legislature, and ordered to be en- 
rolled on parchment and to be deposited in the office 
of the Secretary of State as 

"THE SUPREME LAW OF THE STATE." 
[Note. — By Resolve of January 12, 1875, Governor Dingley was 
authorized to appoint a Commission of ten persons, "to consider and 
frame such amendments to the Constitution of Maine as may seem 
necessary, to be reported to the Legislature ;" and Edward Kent, 
William P. Haines, George F. Talbot, William M. Rust, Henry E. 
Robins, Washington Gilbert, James C. Madigan, Artemas Libbey, 
Frederick A. Pike and William K. Kimball, were appointed. 

Nine of the amendments reported by the Commission, viz. : — in 
relation to 

(XIII) Election of Senators by Plurality vote ; 

(XIV) Special Legislation and Corporations ; 

(XV) Power of Governor to pardon ; 

(XVI) Appointment of Judges of Municipal and Police Courts ; 

(XVII) Taxation ; 

(XVIII) Abolishing the Land Agency ; 

(XIX) Constitutional Conventions ; 

(XX) Bribery at Elections ; 

(XXI) Codification of the Amended Constitution : 

were submitted to the people by a Resolve of February 24. 1875, and 
adopted at the annual election, September 13, 1S75.] 



456 OUR SYSTEM OF GOVERNMENT. 

PREAMBLE. 

We, the people of Maine, in order to establish justice, 
insure tranquillity, provide for our mutual defence, pro- 
mote our common welfare, and secure to ourselves and 
our posterity the blessings of liberty, acknowledging with 
grateful hearts the goodness of the Sovereign Ruler of 
the Universe in affording us an opportunity, so favorable 
to the design ; and, imploring His aid and direction in its 
accomplishment, do agree to form ourselves into a free 
and independent State, by the style and title of the STATE 
OF Maine, and do ordain and establish the following 
Constitution for the government of the same. 

[See page 116.] 

This preamble sets forth the purposes for which the 
Constitution of our State was framed ; and upon the 
government established by it devolves the duty of accom- 
plishing these purposes within the sphere of its constitu- 
tional activity, and this duty is as great and as complete 
as that laid upon the Government of the United States 
by the National Constitution. 

The State is "free and independent" only in its proper 
sphere as a member of the Union; i. e., in respect to the 
exercise those powers not expressly or impliedly dele- 
gated to the National Government by the Constitution of 
the United States. 

ARTICLE I. 

DECLARATION of rights. 

SECTION i. All men are born equally free and inde- 
pendent, and have certain natural, inherent and unalien- 
able rights, among which are those of enjoying and 
defending life and liberty, acquiring, possessing and pro- 



THE CONSTITUTION OF MAINE. 457 

tecting property, and of pursuing and obtaining safety 
and happiness. 

As the different clauses of Section 9, Article I. of the 
Constitution of the United States, and the first ten 
amendments to that instrument are restrictions upon the 
powers of the National Government, being a declaration 
that this Government shall not interfere with certain rights 
and immunities of the people, so in the present Article 
of our State Constitution we find similar limitations upon 
the exercise of power by the State Government. As the 
restrictions in the National Constitution do not apply to 
the State Government, so the provisions that make up 
the "Bill of Rights" under consideration furnish no secur- 
ity against the possible abuse of power by the National 
Government. 

Under Section 1, any attempt by governmental au- 
thority, legislative or otherwise, that would tend to inter- 
fere with these "inherent and unalienable rights" will be 
declared by the courts to be contrary to the Constitution, 
without legal sanction and void. 

In regard to property, the test of such unconstitutional 
interference is, that vested rights would thereby be 
abridged or destroyed; i. e., that property rights legally 
acquired under previous laws would be injuriously af- 
fected. " By the spirit and true intent and meaning of 
this section, every citizen has the right of ' possessing and 
protecting property ' according to the standing laws of 
the state at the time of his acquiring it, and during the 
time of his continuing to possess it. The design 

of the framers of our constitution, it would seem was, 



458 OUR SYSTEM OF GOVERNMENT. 

to guard against the retroactive effect of 
legislation upon the property of the citizens." ' 

This freedom from governmental interference with 
property and the use of property has, however, a very 
important limitation. " It is conceded by all authorities 
that the public use of property by the individual is within 
the scope of legislative control. And it matters not 
whether the use be authorized by express statute or dedi- 
cated by the individual proprietor. If it be a public use, 
it is within the supervision and control of the legislature. 
The troublesome question is, whether the use be public. 
A distinction must be made between a public 
use and a use in which the public has an interest. In the 
former case, the public may control, because it is a use 
within the function of government to establish and main- 
tain. In the latter case, it is a private enterprise that 
serves the public and in which it is interested to the extent 
of its necessities and convenience. The former is clearly 
within the control of the legislature, while the latter may 
not be. The public is interested to be well and reasona- 
bly served at the store of the tradesman, the shop of the 
mechanic and the office of the professional man, and yet, 
all these vocations are private. ... It must not be 
understood that each one may not be properly subjected 
to suitable police regulations as to the manner of his busi- 
ness ; but the business cannot be thereby controlled and 
the profits to be gained therefrom destroyed, taken away 
or limited by the establishment of prices ; otherwise we 
should have a paternal government that might crush out 



Proprietors of Kennebec Purchase vs. Laboree. 2 Me., 290. 



THE CONSTITUTION OF MAINE. 459 

all individual liberty, and the declaration of our constitu- 
tion would become as valueless as stubble. 

It is conceded by all authorities that common carriers, 
common roads, common wharves, common telegraphs, 
common telephones, etc., and common grist-mills and 
common lumber mills are of that public nature to be put 
under public control, whether operated under the authority 
of charters from the State, or by individual enterprise." 1 

Sec. 2. All power is inherent in the people; all free 
governments are founded in their authority and instituted 
for their benefit; they have therefore an unalienable and 
indefeasible right to institute government, and to alter, 
reform, or totally change the same, when their safety and 
happiness require it. 

This section is but an assertion of the principle that lies 
at the basis of our governmental system, — this is a " gov- 
ernment of the people, by the people, and for the people." 

This principle, however, does not involve the absolute 
and unrestrained control of the majority, for that would 
be no government, would be anarchy. This Constitu- 
tion prescribes methods for ascertaining the will of the 
people in regard to any alteration in the governmental 
system of our State, and an attempt to effect a change in 
the organic law in any way not provided for or contem- 
plated in this instrument, would depend for its validity, 
not upon law, but upon force. It is scarcely conceivable, 
however, that an attempt to change the constitution of a 
State by revolutionary means could avoid the effect of the 



'State vs. Edwards, 86 Me., 104. 



460 OUR SYSTEM OF GOVERNMENT. 

declaration in the National Constitution that "The United 
States shall guarantee to every State in the Union a 
Republican Form of Government." 1 This declaration 
also denies to the people of a State the right to institute, 
even in the manner prescribed in their Constitution, a gov- 
ernment of any other kind than the one thus guaranteed. 

Sec. 3. All men have a natural and unalienable right 
to worship Almighty God according to the dictates of 
their own consciences, and no one shall be hurt, molested 
or restrained in his person, liberty or estate for worship- 
ing God in the manner and season most agreeable to the 
dictates of his own conscience, nor for his religious pro- 
fessions or sentiments, provided he does not disturb the 
public peace, nor obstruct others in their religious wor- 
ship ; — and all persons demeaning themselves peaceably 
as good members of the State shall be equally under the 
protection of the laws, and no subordination nor prefer- 
ence of any one sect or denomination to another shall 
ever be established by law, nor shall any religious test be 
required as a qualification for any office or trust, under 
this State ; and all religious societies in this State, whether 
incorporate or unincorporate, shall at all times have the 
exclusive right of electing their public teachers, and 
contracting with them for their support and maintenance. 

[See pages 381, 385-8.] 

Sec. 4. Every citizen may freely speak, write and 
publish his sentiments on any subject, being responsible 
for the abuse of this liberty ; no laws shall be passed reg- 
ulating or restraining the freedom of the press ; and in 
prosecutions for any publication respecting the official 
conduct of men in public capacity, or the qualifications 
of those who are candidates for the suffrages of the peo- 



l See p. 369. 



THE CONSTITUTION OF MAINE. 46 1 

pie, or where the matter published is proper for public 
information, the truth thereof may be given in evidence, 
and in all indictments for libels, the jury, after having 
received the direction of the court, shall have a right to 
determine, at their discretion, the law and the fact. 
[See pages 388-9.] 

The essence of slander or libel is malice. A public 
statement concerning a person may be true ; yet if it is 
made about a matter that is%iot of public concern, is 
maliciously made, it is libellous. 

"The official conduct of men in public capacity, or the 
qualifications of those who are candidates for the suf- 
frages of the people " are, however, of interest to all, as 
many other matters also are " proper for public informa- 
tion;" in such cases the defendant in a libel suit will 
properly be allowed to plead as a justification the truth 
of what he has published. 

In a charge to a jury in a suit brought against a news- 
paper for libel, Justice Strout of the Supreme Court of 
this State stated the law as follows : — 

" If the statements of the article complained of were 
true, substantially true, the defense is complete and your 
verdict will be for the defendant. I say further, that if 
they were honestly believed to be true and the belief that 
they were true was founded on reasonably probable cause, 
that is, if they made diligent efforts and inquiries at proper 
places and of proper persons, and received their informa- 
tion from such reliable sources as would justify belief, and 
they honestly believed the charges were true, and they 
had reasonable and probable cause for their belief, and 
they were in good faith published for the information of 



462 OUR SYSTEM OF GOVERNMENT. 

the people, without malice, they are protected, notwith- 
standing they may not be true. 

It is one of the penalties, if I may use that term, to 
which public officers are subjected, that they may some 
times be compelled to bear unfavorable criticism, unjust 
criticism, of their conduct when the circumstances are 
such as to cause the people to believe fairly and honestly 
and upon sufficient grounds a thing to be true, although 
it may not be true ; it is not the rule as to a private 
individual, but it is to anybody in an official position." l 

By the common law, in a case of libel the judge was to 
determine as a matter of law whether the statement in 
question was of a libellous nature, while the jury was 
simply to decide whether or not the defendant published 
it. This practically gave to the judges a censorship of 
the press and of public speech, and in England this power 
was frequently used in a harsh and tyrannical manner to 
silence just criticisms upon themselves and upon the 
Crown. Hence the wisdom of this provision in our State 
Constitution, which places the whole question as to 
whether or not a libel has been committed, in the hands 
of a body of men upon whom the executive or the legis- 
lative branch of the government can exercise no especial 
influence, who have no official dignity or traditions to 
maintain, who are simply twelve citizens called from the 
ordinary walks of life to discharge for the time being cer- 
tain public functions. 

SEC. 5. The people shall be secure in their persons, 



1 Plummer vs. Portland Express, Supreme Judicial Court of Me. 
January Term (1896), Cumberland County. 



\ 



THE CONSTITUTION OF MAINE. 463 

houses, papers and possessions from all unreasonable 
searches and seizures ; and no warrant to search any 
place, or seize any person or thing, shall issue without a 
special designation of the place to be searched, and the 
person or thing to be seized, nor without probable cause 
— supported by oath or affirmation. 
[See pages 892-5.] 

"When a designation so limited and special, as to dis- 
tinguish the place or thing from all others of like kind, 
cannot well be made, it should not be required. There 
can be no difficulty experienced in practice, if such a 
designation of the place be required as would, if used in 
a conveyance, be sufficient to describe and convey it. 
That cannot be considered as ' a special designation,' 
which, if used in a conveyance, would not convey it, and 
which would not confine the search to one building or 
place." l 

SEC. 6. In all criminal prosecutions, the accused shall 
have a right to be heard by himself and his counsel, or 
either, at his election ; 

To demand the nature and cause of the accusation, and 
have a copy thereof ; 

To be confronted by the witnesses against him ; 

To have compulsory process for obtaining witnesses in 
his favor ; 

To have a speedy, public and impartial trial, and, 
except in trials by martial law or impeachment, by a jury 
of the vicinity. He shall not be compelled to furnish or 
give evidence against himself, nor be deprived of his life, 
liberty, property or privileges, but by judgment of his 
peers, or by the law of the land. 

[See pages 403-406, 341-343' 397' 399"4 01 -] 



'State vs. Robinson, ^3 Me., 570. See also 62 Me., 420. 



464 OUR SYSTEM OF GOVERNMENT. 

"A jury of the vicinity" means in our State Constitu- 
tion a jury of the county in which the crime was com- 
mitted. If, however, for any reason it may appear that 
the accused will not be likely to have a fair trial there, on 
his application " a change of venue" may be granted; 
i. e., the trial maybe transferred to another count}'. 

The Supreme Judicial Court of Maine held in 187 1 
that the fact that a person did not go upon the witness 
stand to give evidence in his own behalf might be taken 
into consideration by the jury in determining the question 
of his guilt or innocence; in 1879, however, the Legisla- 
ture enacted as follows: — "In all criminal trials, the 
accused shall, at his own request, but not otherwise, be a 
competent witness. He shall not be compelled to testify 
on cross examination to facts that would convict, or fur- 
nish evidence to convict him of any other crime than that 
for which he is on trial ; and the fact that he does not 
testify in his own behalf, shall not be taken as evidence of 
his guilt." 1 

The protection to the people against the arbitrary ex- 
ercise of State authority, guaranteed by the last provision 
of this clause, is also secured to them by the first section 
of the Fourteenth Amendment of the National Constitu- 
tion. 2 Hence, either the courts of the United States or 
the courts of Maine may be appealed to by any citizen 
of our State in case its Government or any branch thereof 
shall attempt to deprive him of "his life, liberty, property, 
or privileges, but by the judgment of his peers, or by the 
law of the land." 

*Rev. Statutes Me., 1883, Ch. 134, Sec. 19. 2 See p. 419. 



THE CONSTITUTION OF MAINE. 465 

Sec. 7. No person shall be held to answer for a capital 
or infamous crime, unless on a presentment or indictment 
of a grand jury, except in cases of impeachment, or in 
such cases of offences as are usually cognizable by a 
justice of the peace, or in cases arising in the army or 
navy, or in the militia when in actual service in time of 
war or public danger. The Legislature shall provide by 
law a suitable and impartial mode of selecting juries and 
their usual number and unanimity, in indictments and 
convictions, shall be held indispensable. 

[See pages 395-7.] 

The municipal judges and trial justices have jurisdiction 
" in such cases of offences as are usually cognizable by 
a justice of the peace," and it is to them under the 
provisions of our statutes that the exception here made 
especially applies. 1 To these officers is given the power 
of trying lesser offenses against the law without a previous 
indictment or presentment by a grand jury or the inter- 
vention of a trial jury ; in such cases, the proceedings 
against the accused are commenced by a writ issued by a 
trial justice or a municipal judge directing a sheriff, deputy 
sheriff, or constable, to arrest the person accused and 
bring him before some trial justice or municipal judge of 
the county in which the writ was issued to answer to the 
complaint therein set forth. 

The jurisdiction of these trial justices and municipal 
judges is established as a matter of convenience and as an 
exception to a general rule of the Constitution protecting 
the individual against the exercise of arbitrary power ; 
hence, all their authority in this respect is explicitly set 

J The functions of these officers will be considered in the discussion 
on the State Judiciary. 
30 



466 OUR SYSTEM OF GOVERNMENT. 

forth by statute, none is derived from the common law, 
or by any presumption or implication whatever. 1 

By the laws of this State, the municipal officers, treas- 
urer, and clerk of each town constitute a board whose 
duty it is to prepare at least once in three years a list of 
its citizens under the age of seventy, and suitable and 
qualified for serving as jurors, and to submit this list to 
the people in legal town-meeting. 

In this meeting a majority of the voters assembled 
may strike off such names from the list as they see fit, 
but cannot insert others. 

After the list has been passed upon by the town, the 
names that stand approved are written on tickets by the 
board, and these tickets are placed in a "jury box" that 
is kept by the town clerk, each town being required to 
have in such a box not less than one nor more than two 
names for every hundred of its population. 

Within one year after every new census, every board 
of county commissioners is required to divide its county 
into not less than four nor more than twelve districts, 
making the number of inhabitants in the several districts 
as numerically equal as may be without dividing a town ; 
a record of this division is then to be furnished to the 
clerk of the courts in the county in which it was made. 
From these jury districts the jurors are drawn so that as 
nearly as possible each part of the county may be 
represented. 

The clerk of the courts in each county issues to the 



1 Hersom's Case, 39 Me., 476. 



THE CONSTITUTION OF MAINE. 467 

sheriff venires J directed to the constables of the differ- 
ent towns from which the jurors are to be summoned. 
Venires for the grand jurors are issued forty days, at 
least, before the second Monday of September, annually, 
these jurors serving during the year at each term of the 
court for the transaction of criminal business. Venires 
for traverse jurors are issued " seasonably before each 
term of court, and at such other time as the court may 
order." 

The sheriff on receiving the venires immediately trans- 
mits one to a constable in each of the different towns, 
and the constable on the receipt of a venire summons a 
town meeting according to its commands. The town 
clerk presents the jury box at this meeting and as many 
tickets are drawn as there are jurors called for, and the 
persons whose names are on those tickets are declared to 
be jurors, if they are able to attend court. No person, 
however, is liable to serve on the jury more than once in 
three years. 

The constable having the venire then notifies the persons 
drawn at least four days before the opening of the court 
to attend its sessions, and returns the writ to the clerk of 
the courts with a statement of his doings endorsed 
thereon. 

The final provision of this section establishes the 
common law doctrine that the trial jury must decide 



'A venire is a writ directed by a clerk of the courts to a constable of 
a town commanding him to notify its voters, and especially its 
municipal officers, to assemble for the draft of jurors and also making- 
it his duty to notify the persons drawn to attend to the service at the 
first day of the session of the court. 



468 OUR SYSTEM OF GOVERNMENT. 

unanimously in order to give a verdict, and that the 
agreement of twelve members of a grand jury to an in- 
dictment is sufficient to make it a " true bill." J 

SEC. 8. No person, for the same offence, shall be 
twice put in jeopardy of life or limb. 
[See pages 397-9.] 

Sec. 9. Sanguinary laws shall not be passed; all 
penalties and punishments shall be proportioned to the 
offence ; excessive bail shall not be required, nor exces- 
sive fines imposed, nor cruel nor unusual punishment 
inflicted. 

[See pages 407-9.] 

Sec. 10. No person before conviction shall be bailable 
for any of the crimes, which now are, or have been 
denominated capital offences since the adoption of the 
Constitution, where the proof is evident or the presump- 
tion great, whatever the punishment of the crimes may 
be. And the privilege of the writ of Jiabeas corpus shall 
not be suspended, unless when in cases of rebellion or 
invasion the public safety may require it. 

[See pages 407-8, 254-8.] 

The first clause of this section was originally, — "All 
persons, before conviction, shall be bailable, except for 
capital offences, where the proof is evident or the pre- 
sumption great." This was superseded by the existing 
provision, which was adopted by the people as the Third 
Amendment to the Constitution in 1837. 

Sec. 11. The Legislature shall pass no bill of at- 



'See p. 396. 



THE CONSTITUTION OF MAINE. 469 

tainder, ex post facto law, nor law impairing the obligation 
of contracts, and no attainder shall work corruption of 
blood nor forfeiture of estate. 
[See pages 258-261, 348, 266, 271-2.] 

The first three provisions of this section repeat prohi- 
bitions laid upon the Legislature by our National Consti- 
tution and thus render our State courts available to 
remedy such abuses should they be attempted. 

The fourth provision affords a complete safeguard 
against the harsh doctrines of the common law in regard 
to the consequences of attainder. Hence, if in our State 
courts the punishment of corruption of blood or forfeiture 
of estate is to be inflicted, it must be done in virtue of 
some direct and specific statutory provision and cannot 
result as a matter of implication or consequence from the 
conviction of a crime. 

Sec. 12. Treason against this State shall consist only 
in levying war against it, adhering to its enemies, giving 
them aid and comfort. No person shall be convicted of 
treason unless on the testimony of two witnesses to the 
same overt act, or confession in open court. 

[See pages 344"347-] 

There has been much discussion as to whether it would 
be possible to levy war against a State without at the 
same time levying war against the Nation, whether treason 
against a State is not necessarily merged into the crime of 
treason against the United States. 

In the trial of the rioters at Homestead, Pennsylvania, 
Chief Justice Paxson of that State in charging the jury 



470 OUR SYSTEM OF GOVERNMENT. 

answered these questions by laying down the following 
doctrines : — 

"When a large number of men arm and organize 
themselves by divisions and companies, appoint officers, 
and engage in a common purpose to defy the law and 
resist its officers, and to deprive any portion of their fel- 
low citizens of the rights to which they are entitled under 
the constitution and the laws, it is a levying of war against 
the State, and the offense is treason. Much more so 
when the functions of the State government are usurped 
in a particular locality, the process of the commonwealth 
and the lawful acts of its officers resisted, and unlawful 
arrests made at the dictation of a body of men, who have 
assumed the functions of government in that locality. It 
is a state of war when a business plant has to be sur- 
rounded by an army of the state for weeks to protect it 
from unlawful violence at the hands of men formerly 
employed in it. Where a body of men have organized 
for a treasonable purpose, every step taken is an overt 
act of treason in levying war." l 

Sec. 13. The laws shall not be suspended but by the 
Legislature or its authority. 

This clause, which is intended as a safeguard against 
possible abuse of power on the part of the executive 
branch of the government, declares that the due course 
of the laws shall not be interrupted unless by the au- 
thority of the direct representatives of the people. Such 
a step would, of course, be taken only in some great 



homestead Treason Cases, 1 Dist., Rep., Pa., 785. 



THE CONSTITUTION OF MAINE. 47 1 

emergency and when the public safety imperatively 
demands it. 

SEC. 14. No person shall be subject to corporal pun- 
ishment under military law, except such as are employed 
in the army or navy, or in the militia when in actual 
service in time of war or public danger. 

Flogging and other modes of corporal punishment 
were in vogue in the army and navy at the time that the 
Constitution of Maine was framed ; hence the exceptions 
made in this clause. Fortunately this brutal and degrad- 
ing practice is now almost universally condemned in this 
country, and any attempt to revive it in this State under 
any circumstances would be prohibited by public senti- 
ment even if this constitutional prohibition did not exist. 

Sec. 15. The people have a right at all times in an 
orderly and peaceable manner to assemble to consult 
upon the common good, to give instructions to their 
representatives, and to request, of either department of 
the government by petition or remonstrance, redress of 
their wrongs and grievances. 

[See page 390.] 

The right of the people to assemble " to give instruc- 
tions to their representatives" is the right of the people 
to assemble to express their opinions and does not imply 
that the representatives are bound to obey these instruc- 
tions. Once elected, the senator or representative in the 
State Legislature or in Congress is free to act on his own 
convictions as to what the public welfare demands, 
whatever may be the views of those who elected him. 



472 OUR SYSTEM OF GOVERNMENT. 

SEC. i 6. Every citizen has a right to keep and bear 
arms for the common defence ; and this right shall never 
be questioned. 

[See page 390.] 

The laws of this State provide that "whoever goes 
armed with any dirk, pistol, or other offensive weapon, 
without just cause to fear an assault on himself, family, or 
property, may, on complaint of any person having cause 
to fear an injury or breach of the peace, be required to 
find sureties to keep the peace for a term not exceeding 
one year, and in case of refusal may be committed to jail 
for the time for which he was required to find sureties, or 
until he complies with such order." I 

SEC. 17. No standing army shall be kept up in time 
of peace without the consent of the Legislature, and the 
military shall, in all cases, and at all times, be in strict 
subordination to the civil power. 

The subordination of the military to the civil power, 
which is a principle of prime importance in republics, has, 
perhaps, but little need of being expressly set forth in our 
State Constitution, for the whole instrument is a virtual 
declaration of the same thing. 

Sec. 18. No soldier shall, in time of peace, be 
quartered in any house without the consent of the owner 
or occupant, nor in time of war, but in a manner to be 
prescribed by law. 
[See pages 391-2.] 



^ev. Statutes of Me., Ch. 130, Sees. 10 and 4. 



THE CONSTITUTION OF MAINE. 473 

SEC. 19. Every person, for an injury done him in his 
person, reputation, property or immunities, shall have 
remedy by due course of law; and right and justice shall 
be administered freely and without sale, completely and 
without denial, promptly and without delay. 

The equality of all persons before the law is one of the 
cardinal principles of our governmental system, and it is 
the object of this section to prevent any violation of this 
great principle by our State government or any branch 
thereof acting under the forms of law. 

The Magna Charta itself makes King John declare, 
(Sec. 40,) "We will sell to no man, we will not deny to 
any man, either justice or right." J 

SEC. 20. In all civil suits, and in all controversies con- 
cerning property, the parties shall have a right to a trial 
by a jury, except in cases where it has heretofore been 
otherwise practised ; the party claiming the right may be 
heard by himself and his counsel, or either, at his 
election. 

[Pages 341, 343.] 

By this clause, trial by jury is established as the 
ordinary method of determining questions of fact in the 
courts of our State. Cases arising in equity, however, as 
well as those of lesser importance placed within the juris- 
diction of municipal judges and trial justices are tried 
without a jury; and the right to a jury may also be 
waived by the consent of the parties to a suit, in which 
case the judge determines the facts as well as the law in 
controversy. 



'See Appendix. 



474 °UR SYSTEM OF GOVERNMENT. 

These questions will be more completely considered in 
the discussion on the Judiciary. 

SEC. 21. Private property shall not be taken for pub- 
lic uses without just compensation ; nor unless the public 
exigencies require it. 
[See pages 401-2.] 

The general power of eminent domain over the terri- 
tory lying within the limits of the different States is 
vested in their respective governments, subject to the 
right of the National Government to exercise a similar 
power so far as it may be " necessary and proper for 
carrying into execution " the powers vested in it by the 
Constitution. 

The expression, " by the Consent of the Legislature," J 
etc., in Article L, Section 3, Clause 17 of the Constitution 
of the United States was undoubtedly inserted to avoid 
State jealousy, and the rule has been to obtain the such 
"Consent;" but whatever weight this might lend to the 
theory that the right of eminent domain vests exclusively 
in the State, the great and controlling fact remains, that- 
the Constitution of the United States was framed to estab- 
lish a National Government "whose means are adequate 
to its ends ; and on these means alone was it expected to 
rely for the accomplishment of its ends. To impose on it 
the necessity of resorting to means which it cannot con- 
trol, which another government may furnish or withhold, 
would render its course precarious, the result of its meas- 
ures uncertain, and create a dependence on other gov- 

^ee p. 247. 



THE CONSTITUTION OF MAINE. 4/5 

ernments which might disappoint its most important 
designs, and is incompatible with the language of the 
Constitution." ■ 

The laws of this State provide that the Governor, with 
the advice and consent of the Council, may take posses- 
sion of any lands by purchase, or by the right of eminent 
domain, and cede the same to the United States " for the 
purpose of erecting, using or maintaining any fort, fortifi- 
cation, arsenal," etc. As a matter of custom and of con- 
venience, a similar practice prevails in all the States. 

The manner of exercising the right of eminent domain 
is determined by our Legislature, subject to the ultimate 
right of the United States as above set forth, but the 
actual exercise of it may be, and usually is, delegated to 
corporations to be carried into effect. The grant to 
private corporations is embodied in a charter and is 
designed to enable them to carry out some specified 
work of public utility, such as the building of railroads. 
Public corporations, i. e., counties, cities, and towns, exer- 
cise this right under general law for the purpose of lay- 
ing out highways, etc. For the laying out of ways or 
roads of any nature, however, it is the use of the land 
that is appropriated, and in case the way should be dis- 
continued, the original owner or those who hold from 
him would again possess full property rights over it. 

The damages, "just compensation," allowed to the per- 
son whose property is thus taken, is determined by the 
county commissioners of the county in which it is located, 
in case the parties interested are unable to agree ; an 



M'Culloch vs. Md., 4 Wheat., p. 316. 



476 OUR SYSTEM OF GOVERNMENT. 

appeal may, however, be taken from the decision of this 
body to the Supreme Judicial Court of the State. 

As to what constitutes a public use or a public exi- 
gency, no general rule can be laid down. The courts 
have almost uniformly held that the functions of railroads 
and the general public need of them justify the legislative 
grant of the power of eminent domain to the corpora- 
tions that build them, and the levying of taxes to assist 
in their construction. In regard to other private cor- 
porations, each case must be determined in the courts on 
its own merits, but as the exercise of this great power is 
in derogation of individual rights, the public purpose and 
the public exigency must be direct and obvious to justify 
it. 

Sec. 22. No tax or duty shall be imposed without the 
consent of the people or of their representatives in the 
Legislature. 

[See pages 23, 30, 91, 93, 95. 263-4.] 

This clause is but an assertion of the ancient and fun- 
damental principle, that taxes are to be levied only by the 
consent of the people. 

SEC. 23. No title of nobility or hereditary distinction, 
privilege, honor or emolument, shall ever be granted or 
confirmed, nor shall any office be created, the appointment 
to which shall be for a longer time than during good 
behavior. 

[See pages 265-6.] 

An office to which the appointment should be for a 
longer time than good behavior would be practically a 



THE CONSTITUTION OF MAINE. 477 

public position of -privilege and emolument independent 
of any service to the State, a condition of affairs that 
would be of the same nature and equally as repugnant to 
our institutions as the establishment of ranks and castes. 

SEC. 24. The enumeration of certain rights shall not 
impair nor deny others retained by the people. 

The National Government is one of enumerated and 
implied powers, 1 and the Ninth Amendment to the Na- 
tional Constitution 2 guards against implication to the 
contrary that might be inferred from the restrictions on 
this Government therein set forth. The State Govern- 
ment is unlimited in its sphere of action except as to the 
powers expressly or impliedly denied to it by the Na- 
tional Constitution and by the State Constitution. 

Hence this section under consideration means scarcely 
more than this : — If the State Government or any branch 
thereof attempt any thing contrary to the genius of our 
institutions or plainly oppressive to the people, it is un- 
constitutional even though the power to do this particular 
thing be not expressly denied to it in this " Declaration of 
Rights-" 

ARTICLE II. 

ELECTORS. 

SEC. i. Every male citizen of the United States of the 
age of twenty-one years and upward, excepting paupers, 
persons under guardianship, and Indians not taxed, having 
his residence established in this State for the term of three 
months next preceding any election, shall be an elector for 



^ee pp. 182-4, 251-2. 2 See p. 409. 



478 OUR SYSTEM OF GOVERNMENT. 

Governor, Senators and Representatives, in the town or 
plantation where his residence is so established ; and the 
elections shall be by written ballot. But persons in the 
military, naval or marine service of the United States, or 
this State, shall not be considered as having obtained such 
established residence by being stationed in any garrison, 
barrack, or military place, in any town or plantation ; nor 
shall the residence of a student at any seminary of learning 
entitle him to the right of suffrage in the town or planta- 
tion where such seminary is established. No person, 
however, shall be deemed to have lost his residence by 
reason of his absence from the State in the military service 
of the United States, or of this State. 

AMENDMENT XXIX. 

EDUCATIONAL QUALIFICATION OF VOTERS. 

No person shall have the right to vote or be eligible 
to office under the constitution of this state, who shall not 
be able to read the constitution in the English language 
and write his name; provided, however, that the provis- 
ions of this amendment shall not apply to any person pre- 
vented by a physical disability from complying with its 
requisitions, nor to any person who now has the right to 
vote, nor to any person who shall be sixty years of age or 
upwards at the time this amendment shall take effect. 

[The Twenty-ninth Amendment was proposed to the people by a 
resolve of the Sixty-fourth Legislature; approved April 2, 1891 ; 
adopted September 12, 1892; proclaimed by Governor Burleigh 
December 13, 1892, and took effect on the first Wednesday of January, 
1893-] 

In Section 1 of Article II., and in the Twenty-ninth 
Amendment, are set forth the qualifications of those who 
are entitled to exercise the right of suffrage in this State; 
these qualifications can neither be increased or diminished 
by legislative enactments, it being an established rule that 



THE CONSTITUTION OF MAINE. 479 

"when the constitution defines the circumstances under 
which a right may be exercised or a penalty imposed, the 
specification is an implied prohibition against legislative 
interference to add to the condition, or to extend the 
penalty to other cases." ' 

This rule, however, does not forbid the enactment of 
proper and suitable laws regulating the exercise of the 
right of suffrage. " It is a recognized and familiar prin- 
ciple that the elective franchise, though guaranteed by 
the constitution as a sacred privilege to the persons there 
named as electors, must still be exercised under such 
regulations and restrictions as the legislature may deem 
reasonably necessary to maintain order in the elections, 
prevent intimidation, bribery and fraud, preserve the 
purity of the ballot box and thus secure a genuine 
expression of public sentiment." 2 

" Persons under guardianship " are those who are under 
the personal control of others ; * this term denotes those 
who are imprisoned or confined in an asylum, as well as 
those who are under guardianship because of their in- 
ability to take care of themselves. The propriety of 
denying suffrage to each of these classes is obvious. 

The term " residence," equivalent in this section to 
domicil, is more easily understood in its ordinary purport 
or as applied to a particular case, than susceptible of pre- 
cise definition. Generally speaking, it means the place 
which a person considers his home, and any absence from 
which he regards as but temporary. 

When passing upon any particular case, the courts take 

'Cooley, Const. Limitations, p. 78. 
2 Curran vs. Clayton, 86 Me., 52. 



480 OUR SYSTEM OF GOVERNMENT. 

into consideration the various facts bearing upon the 
maintenance or the change of the domicil in controversy 
as well as the claims of the person chiefly interested as 
to his intention, etc. ; hence, the determination of the 
matter often becomes one of great difficulty. " It is a 
maxim that every man must have a domicil somewhere, 
and also that he can have but one. Of course it follows 
that his existing domicil continues until he acquires 
another ; and vice versa, by acquiring a new domicil he 
relinquishes his former one. ... If a seaman, with- 
out family or property, sails from the place of his nativity, 
which may be considered his domicil of origin, although 
he may return only at long intervals, or even be absent 
many years, yet if he does not by some actual residence 
or other means acquire a domicil elsewhere, he retains 
his domicil of origin." x 

Hence, a person in this State who changes his domicil 
from one town to another within three months prior to an 
election cannot vote at this election, for he will have lost 
his residence in the former town, and not have complied 
with the constitutional requirement as to a three months 
residence in the latter. 2 

The term "written ballots" in this section includes 
printed ballots as well as those in script. 2 

"A man is to be considered a pauper so long as he 
receives supplies as such, from the town where he resides, 
but no longer. . . . By this section it appears that 
none of the qualifications of an elector are required to 
have existed prior to the commencement of the term of 



^horndike vs. City of Boston, 1 Met., 242. 

2 See Opinions of the Justices, 7 Me., pp. 494, 495. 



THE CONSTITUTION OF MAINE. 48 1 

three months next before any election, and that all of 
them are declared indispensable during that term. 
It would seem clear that a person who had before been a 
pauper, should also have been during three months pre- 
ceding an election, in possession of, and continuing to 
enjoy the rights of an elector; for unless some such limit 
be established, every pauper might be discharged from 
the alms-house, or otherwise deprived by the overseers of 
all supplies, the day before election. ... If such a 
person shall have received such supplies prior to the com- 
mencement of such term of three months, but not after, 
he will be a qualified voter." * 

The provision in respect to " persons in the military, 
naval or marine service of the United States, or this State, 
is justified by the fact that the nature of the residence set 
forth is, in the main, involuntary and temporary, and liable 
at any time to interruption ; with them, as with students 
at a seminary of learning, the right to vote, especially in 
local matters, might work mischief from the fact that they 
would thereby have great and often controlling power in 
the decision of important matters in which they would 
have no permanent interest and no responsibility. 

This provision and that in regard to students at semi- 
naries of learning do not, however, deny to such persons 
the right to gain a voting residence in the town where 
they are located. Every citizen has a right to change his 
domicil at any time. 

The principle involved in the following opinion given by 
the Supreme Court of the State in regard to the right of 



'Opinions of the Justices, 7 Me., 497. 
31 



482 OUR SYSTEM OF GOVERNMENT. 

a student to acquire a residence in the town where he is 
pursuing his studies applies equally well in the case of 
" persons in the military, naval, or marine service of the 
United States or this State, stationed at any barracks," etc. 

" It is clear enough that residing in a place merely as a 
student does not confer the franchise. Still a student may 
obtain a voting residence, if other conditions exist suffi- 
cient to create it. Bodily presence in a place coupled 
with an intention to make such place a home will establish 
a domicil or residence. . . . The intention must be, 
not to make the place a home temporarily, not a mere 
student's home, a home while a student, but to make an 
actual, real, permanent home there as he might have done 
elsewhere. . . . He gets no residence because a stu- 
dent, but being a student does not prevent his getting a 
residence otherwise. . . . Calling it his residence, 
does not make it so. He may have no right to so regard 
it. Believing the place to be his home is not enough ; 
there may be no foundation for the belief. Swearing that 
it is his home must not be regarded as sufficient if the 
facts are averse to it. In short, each case must be deter- 
mined according to its own circumstances." : 

The final clause of this section is a part of the Tenth 
Amendment to the original Constitution. This amend- 
ment was adopted in pursuance of a legislative resolve 
passed March 4, 1864, and was intended to secure those 
of our citizens who were enduring and suffering so much 
for the maintenance of the Union, against any possible 
loss of political rights or privileges through their absence 



1 Sanders vs. Getchell, 76 Me., 165. 



THE CONSTITUTION OF MAINE. 483 

on this great mission. This amendment, adopted to meet 
the exigencies then existing, will, of course, be equally- 
valid should similar conditions ever again arise. 

The object of Amendment XXIX. is obvious. Those 
to whom is committed the responsible privilege of suf- 
frage will, ordinarily, not be able to comprehend public 
affairs to the extent that will enable them to cast their 
votes intelligently, unless they possess the moderate edu- 
cational qualifications required. The purpose and the 
justice of the exceptions made in the amendment are 
so clear that discussion in this connection would be 
superfluous. 

SEC. 2. Electors shall, in all cases, except treason, 
felony, or breach of the peace, be privileged from arrest 
on the days of election, during their attendance at, going 
to, and returning therefrom. 

SEC. 3. No elector shall be obliged to do duty in the 
militia on any day of election, except in time of war or 
public danger. 

These two sections prevent any interference with elec- 
tions by means of arrest in civil suits, or by the Governor 
through the exercise of his power as commander-in-chief 
of the militia. 

It has been held that the meaning of the former clause 
is not to be extended by implication, and that the elector 
may be arrested prior to going to the polls or after his 
return therefrom, the Supreme Court declaring in the only 
case of this nature that has ever come before it for adjudi- 
cation : — " We are well satisfied that the latter part of the 
above cited section is restrictive of the generality of the 



484 OUR SYSTEM OF GOVERNMENT. 

preceding, and that the meaning is that Electors should 
be privileged from arrest during such part of the day as 
is occupied by them in their attendance at, going to and 
returning from the election." x 

The possible interference with elections that might oc- 
cur were it not for the prohibition contained in Section 3, 
though slight under present conditions, would be danger- 
ous if all the able-bodied men between the ages of eighteen 
and forty-five were actually enrolled in militia organiza- 
tions and hence immediately subject to the summons and 
orders of the Governor', as they formerly were. 

The exception made to the prohibition scarcely needs 
comment. "The public safety is the highest law." 

Sec. 4. The election of Governor, Senators and Rep- 
resentatives shall be on the second Monday of September 
annually forever. But citizens of the State absent there- 
from in the military service of the United States or of 
this State, and not in the regular army of the United 
States, being otherwise qualified electors, shall be allowed 
to vote on Tuesday next after the first Monday of Novem- 
ber, in the year of our Lord one thousand eight hundred 
and sixty-four, for governor and senators, and their votes 
shall be counted aud allowed in the same manner, and 
with the same effect, as if given on the second Monday of 
September in that year. A nd they shall be allowed to vote 
for governor, senators and representatives on the second 
Monday of September annually thereafter forever, in the 
manner herein provided. On the day of election a poll 
shall be opened at every place without this State where a 
regiment, battalion, battery, company, or detachment of 
not less than twenty soldiers from the State of Maine, 
may be found or stationed, and every citizen of said State 

] Hobbs vs. Getchell, 8 Me., 187. 



THE CONSTITUTION OF MAINE. 485 

of the age of twenty-one years, in such military service, 
shall be entitled to vote as aforesaid ; and he shall be 
considered as voting in the city, town, plantation and 
county in this State where he resided when he entered 
the service. The vote shall be taken by regiments when 
it can conveniently be done ; when not so convenient, 
any detachment or part of a regiment not less than twenty 
in number, and any battery or part thereof numbering 
twenty or more, shall be entitled to vote wherever they 
may be. The three ranking officers of such regiment, 
battalion, battery, company, or part of either, as the case 
may be, acting as such on the day of election, shall be 
supervisors of elections. If no officers, then three non- 
commissioned officers according to their seniority shall 
be such supervisors. If any officer or non-commissioned 
officer shall neglect or refuse to act, the next in rank shall 
take his place. In case there are no officers or non-com- 
missioned officers present, or if they or either of them 
refuse to act, the electors present, not less than twenty, 
may choose, by written ballot enough of their own num- 
ber, not exceeding three, to fill the vacancies, and the 
persons so chosen shall be supervisors of elections. All 
supervisors shall be first sworn to support the constitution 
of the United States and of this State, and faithfully and 
impartially to perform the duties of supervisors of elec- 
tions. Each is authorized to administer the necessary 
oath to the others ; and certificates thereof shall be 
annexed to the lists of votes by them to be made and 
returned into the office of the secretary of state of this 
State as hereinafter provided. The polls shall be opened 
and closed at such hours as the supervisors, or a majority 
of them, shall direct; provided, hoivevcr, that due notice 
and sufficient time shall be given for all voters in the 
regiment, battalion, battery, detachment, company, or 
part of either, as the case may be, to vote. Regimental 
and field officers shall be entitled to vote with their re- 



486 OUR SYSTEM OF GOVERNMENT. 

spective commands. When not in actual command, such 
officers, and also all general and staff officers and all sur- 
geons, and chaplains, shall be entitled to vote at any 
place where polls are opened. The supervisors of elec- 
tions shall prepare a ballot box or other suitable recep- 
tacle for the ballots. Upon one side of every ballot shall 
be printed or written the name of the county, and also of 
the city, town or plantation of this State, in which is the 
residence of the person proposing to vote. Upon the 
other side shall be the name or names of the persons to 
be voted for, and the office or offices which he or they 
are intended to fill. And before receiving any vote, the 
supervisors, or a majority of them, must be satisfied of 
the age and citizenship of the person claiming to vote, 
and that he has in fact a residence in the county, city, 
town or plantation which is printed or written on the vote 
offered by him. If his right to vote is challenged, they 
may require him to make true answers, upon oath, to all 
interrogatories touching his age, citizenship, residence, 
and right to vote, and shall hear any other evidence 
offered by him, or by those who challenge his right. 
They shall keep correct poll-lists of the names of all per- 
sons allowed to vote, and of their respective places of 
residence in this State, and also the number of the regi- 
ment and company or battery to which they belong ; 
which lists shall be certified by them or by a majority of 
them, to be correct, and that such residence is in accord- 
ance with the indorsement of the residence of each voter 
on his vote. They shall check the name of every person 
before he is allowed to vote, and the check mark shall be 
plainly made against his name on the poll-lists. They 
shall sort, count and publicly declare the votes at the 
head of their respective commands on the day of elec- 
tion, unless prevented by the public enemy, and in that 
case as soon thereafter as may be ; and on the same day 
of said declaration they shall form a list of the persons 



THE CONSTITUTION OF MAINE. 487 

voted for, with the number of votes for each person 
against his name, and the office which he was intended to 
fill, and shall sign and seal up such list and cause the 
same, together with the poll-lists aforesaid, to be delivered 
into the office of the secretary of state aforesaid, on or 
before the first day of December, in the year one thousand 
eight hundred and sixty-four and on or before the fifteenth 
day of November annually thereafter forever. The legis- 
lature of this State may pass any law additional to the 
foregoing provisions, if any shall, in practice, be found 
necessary in order more fully to carry into effect the pur- 
pose thereof. 

TSee Amendment XXIII. 1 

All of this section beginning with, and after, " But 
citizens of the State," was made a part of the Constitu- 
tion by the Tenth Amendment, adopted in 1864. This 
amendment explains itself ; its justice and propriety rest 
on the self-evident fact that patriotism should not be 
allowed to work deprivation of civil rights. 

The legislative provisions for the regulation of elections 
are so many and so various that an outline of them, even, 
would be beyond the limits of a book of this nature.. 
For information upon this important subject, the reader 
must be referred to Chapter IV. of the Revised Statutes, 

(1883.) 

In 1891, the Legislature passed "an Act to provide for 
the Printing and Distributing of Ballots at the Public 
Expense and to regulate Voting for State and City Elec- 
tions" that effected a radical change in the method of 
voting previously existing. 1 The main object of this law, 
which was modified in certain of its details by the subse- 



1 



'Public Laws of Me., 1891, Ch. 102. 



OUR SYSTEM OF GOVERNMENT. 



quent Legislature, 1 was to secure the voter from the 
influence of bribery or intimidation by making the ballot 
secret. 

ARTICLE III. 

Distribution of powers. 

Sec. i. The powers of this government shall be 
divided into three distinct departments, the Legislative, 
Executive and Judicial. 
[See page 120.] 

Although the three departments of our State Govern- 
ment are distinct, they are not independent of one 
another ; they must move and act in harmony, or all 
government will cease. 

In 1880, when there were two rival organizations, each 
claiming to be the rightful legislature, the Supreme Court 
in answering interrogatories propounded by one of them, 
said : — 

"When different bodies of men, each claiming to be, 
and to exercise the functions of, the legislative depart- 
ment of the state appear, each asserting their title to be 
regarded as the law-givers for the people, it is the obvious 
duty of the judicial department, who must inevitably at 
no distant day, be called to pass upon the validity of the 
laws that may be enacted by the respective claimants to 
legislative authority, to inquire and ascertain for them- 
selves, with or without questions presented by the 
claimants, which of those bodies lawfully represents the 



Public Taws of Me., 1893, Ch. 267. 

See, also, Public Laws of Me., 1893, Ch. 304; 1895, Ch. 40, for pro- 
visions in regard to the registration of voters in cities. 



THE CONSTITUTION OF MAINE. 489 

people from whom they derive their power. There can 
be but one lawful legislature. The court must know for 
itself, whose enactments it will recognize as laws of bind- 
ing force, whose levies of taxes it will enforce when 
brought judicially before it, whose choice of a prosecut- 
ing officer before the court it will respect. In a thousand 
ways, it becomes essential that the court should forthwith 
ascertain, and take judicial cognizance of, the question, 
which is the true legislature?" l 



t>' 



Sec. 2. No person or persons, belonging to one of 
these departments, shall exercise any of the powers prop- 
erly belonging to either of the others, except in the cases 
herein expressly directed or permitted. 

In passing upon the official status of a person who had 
been appointed trial justice and had afterwards accepted 
a commission as a deputy sheriff, Chief Justice Appleton 
speaking for the Supreme Court said: — "When one has 
two incompatible offices, both cannot be retained. The 
public has a right to know which is held and which sur- 
rendered. It should not be left to chance, or to the 
uncertain and fluctuating whim of the office-holder to 
determine. The general rule, therefore, that the accept- 
ance and qualification for an office incompatible with one 
then held is a resignation of the former, is one certain and 
reliable as well as one indispensable for the protection of 
the public." 2 



'Answers of the Justices, 70 Me., 609. 
2 Stubbs vs. Lee, 64 Me., 198. 



49° ^UR SYSTEM OF GOVERNMENT. 

ARTICLE IV.— Part First. 

LEGISLATIVE POWER. — HOUSE OF REPRESENTATIVES. 

Sec. i. The legislative power shall be vested in two 
distinct branches, a House of Representatives, and a Sen- 
ate, each to have a negative on the other, and both to be 
styled the Legislature of Maine and the style of their acts 
and laws shall be, " Be IT ENACTED BY THE SENATE 
and House of Representatives, in Legislature 
assembled." 

[See page 122.] 

Sec. 2. The House of Representatives shall consist 
of one hundred and fifty-one members, to be elected by 
the qualified electors, for one year from the day next pre- 
ceding the annual meeting of the Legislature. The 
Legislature, which shall first be convened under this Con- 
stitution, shall, 011 or before the fifteenth day of August, in 
the year of our Lord, one thousand eight hundred and 
twenty-one, and the Legislature, within every subsequent 
period of at most ten years, and at least five, cause the 
number of inhabitants of the State to be ascertained, 
exclusive of foreigners not naturalized and Indians not 
taxed. The number of • Representatives shall, at the 
several periods of making such enumeration, be fixed 
and apportioned among the several counties as near as 
may be, according to the number of inhabitants, having 
regard to the relative increase of population. The num- 
ber of representatives shall, on said first apportionment, be 
not less than one hundred nor more than one hundred and 
fifty. 

[See Amendments XXIII, XXV.] 

The convention of 18 19 took the Constitution of Mas- 
sachusetts as the general model after which they framed 
the Constitution of Maine. In Massachusetts, however, 



THE CONSTITUTION OF MAINE. 49 1 

owing to the fact that the number of representatives was 
unlimited, the lower branch of the legislature had grown 
to unwieldy proportions. To avoid this inconvenience, 
the convention provided: — "The House of Representa- 
tives shall consist of not less than one hundred nor more 
than two hundred members ; and whenever 

the number of Representatives shall be two hundred, at 
the next annual meetings of Elections, which shall there- 
after be had, and at every subsequent period of ten years, 
the people shall give in their votes, whether the number 
of Representatives shall be increased or diminished, and 
if a majority of votes are in favor thereof, it shall be the 
duty of the next legislature thereafter to increase or 
diminish the number by the rule hereinafter prescribed." 

In 1 841, the Fourth Amendment was made to the Con- 
stitution, definitely fixing the number of representatives 
at one hundred and fifty-one. 

The apportionment number is ascertained by dividing 
the population of the entire State by the whole number of 
representatives, one hundred and fifty-one. This appor- 
tionment number will not, in all probabilities, be an exact 
divisor of the population of any county ; hence, in some 
cases a representative must be assigned for a fractional 
part of it, and this assignment will not depend upon the 
fact that in any particular case this fractional part is 
greater or less than one half, but upon the judgment of 
the Legislature as to what it will soon be, " having regard 
to the relative increase of population." l 

The census of the people of the State, made under the 



1 See Opinions of the Justices, 3 Me., 477. 



49 2 OUR SYSTEM OF GOVERNMENT. 

authority of the United State, is adopted by the Legisla- 
ture as the enumeration for determining the apportion- 
ment of the representatives among the several counties 
and towns and of the senators to the several counties. 

The provision for the apportionment of representatives 
among the several counties " according to the number of 
inhabitants " in each, resulted from the fact, — to be dis- 
cussed under the following section, — that large towns 
were not given representation according to their re- 
spective numbers ; while good reasons exist for such a 
discrimination so far as the large towns themselves are 
concerned, such an arrangement would be obviously un- 
just in so far as the population of these large towns forms 
a part of the population of any section of the State. 
"The whole number of representatives to be elected is 
first apportioned and assigned to the several counties on 
the most exact principles of equity and justice. Thus 
the great sections of the State, the several counties, 
which are but larger corporations, actuated to a certain 
extent by a community of interests, have their due weight 
according to their population. The number of represen- 
tatives, thus apportioned and assigned to any county, is 
next to be distributed among the respective towns in 
such county, each town having the competent number of 
inhabitants being entitled to one or more ; and towns or 
plantations not having that number, to be classed as con- 
veniently as possible. On any practicable system there 
will be fractions, and the representation of course un- 
equal. If under the system adopted by the convention, 
the large towns have not their full representation, it is 
preserved in the county of which they are a part. They 



THE CONSTITUTION OF MAINE. 493 

have their representatives ; and even their fractions, 
which would otherwise be lost to them, are represented 
through the smaller towns of their county, who can 
seldom have an interest at variance with their own." l 

Sec. 3. Each town having fifteen hundred inhabitants 
may elect one representative ; each town having three 
thousand seven hundred and fifty may elect two ; each 
town having six thousand seven hundred and fifty may 
elect three ; each town having ten thousand five hundred 
may elect four ; each town having fifteen thousand may 
elect five ; each town having twenty thousand two hun- 
dred and fifty may elect six ; each town having twenty-six 
thousand two hundred and fifty may elect seven ; but no 
town shall ever be entitled to more than seven representa- 
tives ; and towns and plantations duly organized, not hav- 
ing fifteen hundred inhabitants, shall be classed, as con- 
veniently as may be, into districts containing that number, 
and so as not to divide towns ; and each such district 
may elect one representative ; and, when on this apportion- 
ment the number of representatives shall be two hundred, a 
different apportionment shall take place upon the above 
principle; and, in case the fifteen hundred shall be too 
large or too small to apportion all the representatives to 
any county, it shall be so increased or diminished as to 
give the number of representatives according to the above 
rule and proportion ; and whenever any town or towns, 
plantation or plantations not entitled to elect a represen- 
tative shall determine against a classification with any 
other town or plantation, the Legislature may, at each 
apportionment of representatives, on the application of 
such town or plantation, authorize it to elect a representa- 
tive for such portion of time and such periods, as shall be 
equal to its portion of representation ; and the right of 



'Address of Constitutional Convention to the People. 



494 0UR SYSTEM OF GOVERNMENT. 

representation, so established, shall not be altered until 

the next general apportionment. 

[The number of representatives was limited to one hundred and 
fifty-one by Amendment IV. adopted in 1841 ; see page 491.] 

Although the different towns are subordinate in all 
respects to the authority of the State, yet their corporate 
existence has been recognized in the apportionment of 
representatives from the early settlement of New England. 

Obviously, to give to every town, however small, a 
representative in the lower branch of the Legislature 
would result either in so large a number that efficiency of 
this body would be impaired, or in depriving the larger 
towns of the influence to which their population and the 
amount that they contribute to the treasury of the State 
through taxation justly entitle them. On the other hand, 
to give to the large towns representation according to 
their population would secure to them an influence and a 
controlling power in shaping and controlling legislation 
which might result most prejudicially to the smaller com- 
munities. The provisions of this section, modified by that 
in Section 2, providing for the apportionment of the repre- 
sentatives among the counties according to their respec- 
tive population, seem to afford the best and most equitable 
solution of the problem. 

Sec. 4. No person shall be a member of the House 
of Representatives, unless he shall, at the commencement 
of the period for which he is elected, have been five years 
a citizen of the United States, have arrived at the age of 
twenty-one years, have been a resident in this State one 
year, or from the adoption of this constitution; and for the 
three months next preceding the time of his election shall 



THE CONSTITUTION OF MAINE. 495 

have been, and, during the period for which he is elected, 
shall continue to be a resident in the town or district 
which he represents. 
[See Article II., Sec 1.] 

From the great and immediate influence of State legis- 
lation upon the complex conditions of our social life and, 
generally speaking, upon those things that go to make up 
our character and civilization as a people, it may well be 
asserted that a member of our State Legislature, in order 
to perform his duties as they should be performed, needs 
to exhibit the highest qualities of statesmanship no less 
than does a member of the National Congress. 

SEC. 5. The meetings within this State for the choice 
of representatives shall be warned in due course of law 
by the selectmen of the several towns seven days at least 
before the election, and the selectmen thereof shall pre- 
side impartially at such meetings, receive the votes of all 
the qualified electors present, sort, count and declare 
them in open town meeting, and in the presence of the 
town clerk, who shall form a list of the persons voted for, 
with the number of votes for each person against his 
name, shall make a fair record thereof in the presence of 
the selectmen and in open town meeting. And the towns 
and plantations organized by law, belonging to any class 
herein provided, shall hold their meetings at the same 
time in the respective towns and plantations ; and the 
town and plantation meetings in such towns and planta- 
tions shall be notified, held and regulated, the votes 
received, sorted, counted and declared in the same man- 
ner. And the assessors and clerks of plantations shall 
have all the powers, and be subject to all the duties, 
which selectmen and town clerks have, and are subject to 
by this Constitution. And fair copies of the lists of 



496 OUR SYSTEM OF GOVERNMENT. 

votes shall be attested by the selectmen and town clerks 
of towns, and the assessors of plantations, and sealed up 
in open town and plantation meetings ; and the town and 
plantation clerks respectively shall cause the same to be 
delivered into the secretary's office thirty days at least 
before the first Wednesday of January annually. And 
the governor and council shall examine the returned 
copies of such lists, and also all lists of votes of citizens 
in the military service, returned to the secretary's office, 
as provided in article second, section four, of this Consti- 
tution ; and twenty days before the said first Wednesday 
of January, annually, shall issue a summons to such per- 
sons as shall appear to be elected by a plurality of all the 
votes returned, to attend and take their seats. But all 
such lists shall be laid before the House of Representa- 
tives on the first Wednesday of January annually, and 
they shall finally determine who are elected. The elec- 
tors resident in any city may, at any meeting duly notified 
for the choice of representatives, vote for such represen- 
tatives in their respective ward meetings, and the wardens 
in said wards shall preside impartially at such meetings, 
receive the votes of all qualified electors present, sort, 
count and declare them in open ward meetings, and in 
the presence of the ward clerk, who shall form a list of 
the persons voted for, with the number of votes for each 
person against his name, shall make a fair record thereof 
in the presence of the warden, and in open ward meet- 
ings ; and a fair copy of this list shall be attested by the 
warden and ward clerk, sealed up in open ward meeting, 
and delivered to the city clerk within twenty-four hours 
after the close of the polls. And the electors resident in 
any city may at any meetings duly notified and holden 
for the choice of any other civil officers for whom they 
have -been required heretofore to vote in town meeting, 
vote for such officers in their respective wards, and the 
same proceedings shall be had by the warden and ward 



THE CONSTITUTION OF MAINE. 497 

clerk in each ward, as in the case of votes for representa- 
tives. And the aldermen of any city shall be in session 
within twenty-four hours after the close of the polls in 
such meetings, and in the presence of the city clerk shall 
open, examine and compare the copies from the lists of 
votes given in the several wards, of which the city clerk 
shall make a record, and return thereof shall be made 
into the Secretary of State's office in the same manner as 
selectmen of towns are required to do. 

[This section is modified by those parts of the Tenth Amendment, 
designed to give to our soldiers in the field opportunity to vote ; see 
p. 484. 

The original Constitution made the municipal officers of the dif- 
ferent cities and towns returning boards for ascertaining and certify- 
ing the election of representatives, with the ultimate power in the 
Legislature to prescribe a different method. This system was dis- 
placed by a provision of the Tenth Amendment which appears as the 
part of the present section, beginning with the words, — "And fair 
copies of the lists," and ending with the words, — " shall finally de- 
termine who are elected." 

The Seventh Amendment, adopted in 1847, provided that the repre- 
sentatives should be elected by a plurality of the votes cast, instead of 
a majority, as had previously been the case. 

The provision in regard to elections in cities was added to the 
Constitution by the First Amendment, adopted in 1834. See, also, 
Amendment XXIII., XXV.] 

The notification for the meeting for the choice of repre- 
sentatives, like that for every other legal town-meeting, 
is made by a constable acting under the direction and 
authority of the selectmen. 

"If a majority of the selectmen are absent from any 
such meeting duly warned, or being present, neglect or 
refuse to act as such and do all their duties, the voters 
may choose so many selectmen pro tempore, as are 
necessary to constitute or complete the number competent 
to act. 

The Governor and Council in examining the returns 
certified by the clerk and selectmen of the different towns, 

32 



OUR SYSTEM OF GOVERNMENT. 

whose signatures to these returns are indispensable to 
their validity, must regard such lists as final, though in 
case they but imperfectly comply with the requirements 
of the Constitution, recourse may be had to the original 
record of the town from which they were received to 
supply the deficiency. The Governor and Council have 
no right, however, to send a summons to one who is not 
elected by the face of the returns made, and if such a 
summons be issued, the person receiving it is not entitled 
to even a prima facie right to a seat in the legislative 
body. 

While there must be substantial compliance with all the 
constitutional requirements, yet they, and the numerous 
statutory provisions which are intended to secure the full 
and free expression of the popular will and to give effect 
to such expressions must not be construed so as to defeat 
the great purpose for which they exist. 

When the framers of our constitution and our legisla- 
tors have taken such pains to perpetuate the evidence of 
the votes cast, and to guard that evidence against the 
effect not only of accident, but of human fallibility and 
perfidy, it is not to be thrown away because the secretary 
of state fails, or is unable to comply with this direction. 
The constitution is to be construed, when practicable, in 
all its parts, not so as to thwart, but so as to advance 
its main object, the continuance and orderly conduct of 
government by the people." J 

Sec. 6. Whenever the seat of a member shall be 



'Answers of the Justices, 70 Me., 598. 



THE CONSTITUTION OF MAINE. 499 

vacated by death, resignation, or otherwise, the vacancy- 
may be filled by a new election. 

It is provided by statute that if there be no election in 
a town not classified with other towns in a legislative dis- 
trict, the meeting shall be adjourned until the same day 
of the following week, and that like adjournments shall 
continue until a choice is effected ; and that in the event 
of a vacancy occurring in its representation, a meeting 
shall be called to fill it by the selectmen of the town as 
seasonably as may be : In classified towns, in the case 
of a failure to elect a representative or of a vacancy 
occurring, it devolves upon the selectmen of the oldest 
town of the class to name a day for a new election and to 
notify the selectmen of the other towns of this fact in 
season for them to issue a warrant for the meetings in 
their different towns as required by the Constitution. If 
no choice for a representative is made at an election in a 
city, the aldermen are directed to call another meeting of 
the wards for this purpose within two weeks from the 
meeting already held ; in case of a vacancy, they are to 
seasonably summon a meeting of the wards for the pur- 
pose of filling it. But in the summoning and in all the 
proceedings of all these special meetings, all the require- 
ments of the Constitution and the laws must be as fully 
complied with as on the regular days of election. 

Sec. 7. The House of Representatives shall choose 
their speaker, clerk and and other officers. 
[See p. 133.] 

"The other officers" of the House are the assistant 



500 OUR SYSTEM OF GOVERNMENT. 

clerk, the messenger, the mail carriers, the folders, and 
the reporters. 

Sec. 8. The House of Representatives shall have the 
sole power of impeachment. 
[See p. 369.] 

ARTICLE IV.— Part Second. 

SENATE. 

SEC. 1. The Senate shall consist of not less than 
twenty nor more than thirty-one members, elected at the 
same time, and for the same term, as the representatives, 
by the qualified electors of the district into which the 
State shall from time to time be divided. 
[See Amendments XXIII., XXV.] 

As a result of the final provision of the following sec- 
tion the number of senators is now established at thirty- 
one. 

SEC. 2. The Legislature, which shall be first conve7ied 
under this Constitution, shall, on or before the fifteeftth day 
of August in the year of our Lord, one thousand eight hun- 
dred and twenty-one, and the Legislature at every subse- 
quent period of ten years, cause the State to be divided 
into districts for the choice of senators. The districts 
shall conform, as near as may be, to county lines, and be 
apportioned according to the number of inhabitants. The 
number of senators shall not exceed twenty at the first ap- 
portionment, and shall at each apportionment be increased, 
until they shall amount to thirty-one, according to the in- 
crease i?i the House of Representatives. 

From the adoption of the Constitution, the senatorial 
districts have been made to correspond to the different 



THE CONSTITUTION OF MAINE. 501 

counties ; these have been designated as the first district, 
the second district, etc. 

The following is the order of the counties as senatorial 
districts and the number of senators apportioned to each 
for the decade of 1 892-1902 : — York, 3 ; Cumberland, 4; 
Oxford, 2 ; Androscoggin, 2 ; Franklin, 1 ; Sagadahoc, 1 ; 
Kennebec, 3 ; Somerset, 2 ; Piscataquis, 1 ; Penobscot, 3 ; 
Lincoln, 1 ; Knox, 1 ; Waldo, 1 ; Hancock, 2 ; Washing- 
ton, 2 ; Aroostook, 2. 

Sec. 3. The meetings within this state for the election 
of senators shall be notified, held and regulated, and the 
votes received, sorted, counted, declared and recorded, in 
the same manner as those for representatives. And fair 
copies of the list of votes shall be attested by the select- 
men and town clerks of towns, and the assessors and 
clerks of plantations, and sealed up in open town and 
plantation meetings ; and the town and plantation clerks 
respectively shall cause the same to be delivered into the 
secretary's office thirty days at least before the first 
Wednesday of January. All other qualified electors, liv- 
ing in places unincorporated, who shall be assessed to the 
support of the government by the assessors of an adjacent 
town, shall have the privilege of voting for senators, 
representatives and governor in such town ; and shall 
be notified by the selectmen thereof for that purpose 
accordingly. 

[See Section 5, Part One of this Article.] 

SEC. 4. The Governor and Council shall, as soon as 
may be, examine the returned copies of such lists, and 
also the lists of votes of citizens in the military service, 
returned into the secretary's office, and twenty days 
before the said first Wednesday of January, issue a sum- 
mons to such persons, as shall appear to be elected by a 



502 OUR SYSTEM OF GOVERNMENT. 

plurality of the votes for each district, to attend that day 
and take their seats. 

This section originally directed the Governor and Coun- 
cil to "issue a summons to such persons, as shall appear 
to be elected by a majority of the votes in each district," 
but by Amendment XIII., adopted in 1875, " a majority" 
was changed to " a plurality," as it at present stands. 

SEC. 5. The Senate shall, on the said first Wednesday 
of January, annually, determine who are elected by a 
plurality of votes to be senators in each district; and in 
case the full number of senators to be elected from each 
district shall not have been so elected, the members of 
the house of representatives and such senators, as shall 
have been elected, shall, from the highest numbers of the 
persons voted for, on said lists, equal to twice the number 
of senators deficient, in every district, if there be so many 
voted for, elect by joint ballot the number of senators 
required ; and in this manner all vacancies in the Senate 
shall be supplied as soon as may be, after such vacancies 
happen. 

[See Amendments XXIII., XXV.] 

Until 1875, when the Thirteenth Amendment made a 
plurality vote sufficient to elect, it could easily have hap- 
pened that the Legislature would be called upon to fill 
vacancies in the Senate caused by the failure of the peo- 
ple to elect ; under the present arrangement, however, as 
it will but rarely occur that two candidates for a senator- 
ship will have the same number of votes, the opportuni- 
ties for the Legislature making a choice will be but few. 

Sec. 6. The senators shall be twenty-five years of age 



THE CONSTITUTION OF MAINE. 503 

at the commencement of the term, for which they are 
elected, and in all other respects their qualifications shall 
be the same, as those of the representatives. 

As the number of senators is less than that of the rep- 
resentatives, their individual responsibility is correspond- 
ingly greater; the character of the State Senate, like 
that of the Senate of the Nation, should be essentially 
conservative ; hence the propriety of the qualification as 
to age, as set forth in this section. 

Sec. 7. The Senate shall have the sole power to try 
all impeachments, and when sitting for that purpose shall 
be on oath or affirmation, and no person shall be con- 
victed without the concurrence of two-thirds of the mem- 
bers present. Their judgment, however, shall not extend 
farther than to removal from office, and disqualification 
to hold or enjoy any office of honor, trust or profit under 
this State. But the party, whether convicted or acquitted, 
shall nevertheless be liable to indictment, trial, judgment 
and punishment according to law. 

[See pages 143-148.] 

Sec. 8. The Senate shall choose their president, sec- 
retary and other officers. 

As there is no Vice Governor, or Lieutenant Governor 
provided for in the Constitution, for whom something 
must be found to do, the same considerations apply to 
the right of the Senate to elect its President as to that of 
the House of Representatives to elect its Speaker ; like 
the Speaker, also, the President of the Senate is given the 
power by the rules of the body over which he presides, to 
appoint its committees, and may, as a member, take an 
active part in its debates if he wishes to do so. 



504 OUR SYSTEM OF GOVERNMENT. 

The "secretary and other officers" of the Senate cor- 
respond to " the clerk and other officers " of the House of 
Representatives. 

ARTICLE IV.— Part Third. 

LEGISLATIVE POWER. 

Sec. i. The Legislature shall convene on the first 
Wednesday of January, annually, and shall have full 
power to make and establish all reasonable laws and 
regulations for the defence and benefit of the people of 
this State, not repugnant to this Constitution, nor to that 
of the United States. 

[See Amendments XXIII. , XXV., and pages 122, 182.] 

Sec. 2. Every bill or resolution having the force of 
law, to which the concurrence of both houses may be 
necessary, except on a question of adjournment, which 
shall have passed both houses, shall be presented to the 
Governor, and if he approve, he shall sign it ; if not, he 
shall return it with his objections to the house, in which 
it shall have originated, which shall enter the objections at 
large on its journals, and proceed to reconsider it. If 
after such consideration, two-thirds of that house shall 
agree to pass it, it shall be sent together with the objec- 
tions, to the other house by which it shall be reconsidered, 
and, if approved by two-thirds of that house, it shall have 
the same effect, as if it had been signed by the Governor ; 
but in all such cases, the votes of both houses shall be 
taken by yeas and nays, and the names of the persons, 
voting for and against the bill or resolution, shall be 
entered on the journals of both houses respectively. If 
the bill or resolution shall not be returned by the Gov- 
ernor within five days (Sundays excepted) after it shall 
have been presented to him, it shall have the same force 
and effect, as if he had signed it, unless the Legislature, 



THE CONSTITUTION OF MAINE. 505 

by their adjournment prevent its return, in which case it 
shall have such force and effect, unless returned within 
three days after their next meeting. 
[See pages i73" I 79-] 

"The signature of the governor to an act of the legis- 
lature is conclusive evidence of executive approval against 
every one but himself. He alone should be permitted to 
disprove it, and only then, while he holds control of the 
act, and before he shall have deposited the same in the 
archives of the state ; for then it becomes operative, as 
expressing the legislative will in the form of a statute." l 

Sec. 3. Each house shall be the judge of the elec- 
tions and qualifications of its own members, and a majority 
shall constitute a quorum to do business ; but a smaller 
number may adjourn from day to day, and may compel 
the attendance of absent members, in such manner, and 
under such penalties as each house shall provide. 

[See pages 155-158.] 

"Without a legal organization formed and legal officers 
chosen, by seventy-six members, present and voting, in 
the House of Representatives, and by sixteen members, 
present and voting, in the Senate, upon the given meas- 
ure, no officers can be chosen or law passed or business 
done, except to adjourn. 

It is the House or Senate when formed and organized 
that has the power to compel such attendance of absent 
members, .... and it is not within the power of 
persons who are merely members elect to do so. The 
attendance may, under our constitution, be compelled by 



'Weeks vs. Smith, Si Me., 538. 



506 OUR SYSTEM OF GOVERNMENT. 

such penalties as each House may provide. Until a legal 
organization has been effected, there is no House to pro- 
vide penalties for such purpose. Until a legal organiza- 
tion is completed, there is no officer in either House to 
issue a warrant against the absent member. No such 
power was committed, or intended to be committed, into 
the hands of persons not comprising and acting as an 
organized and completed House. It has frequently hap- 
pened in our history, that legislative bodies have been 
delayed days, and sometimes weeks, without being able 
to complete an organization for the want of a quorum." 1 

Sec. 4. Each house may determine the rules of its 
proceedings, punish its members for disorderly behavior, 
and, with the concurrence of two-thirds, expel a member, 
but not a second time for the same cause. 

[See pages 158-161.] 

The provision in this section that neither House shall 
expel a member "a second time for the same cause" 
probably had its origin in the idea that the senator or 
representative is ultimately responsible to his constituents 
and that whatever they may sanction on his part should 
be permitted. The responsibility of a member of Legis- 
lature, however, is to the people of the whole State, and 
it may well be questioned whether the restriction here 
made upon the power of each House to conduct its ses- 
sions with proper decorum may not some time be a 
source of disorder and mischief. 

SEC. 5. Each house shall keep a journal, and from 
time to time publish its proceedings, except such parts as 

Answers of the Justices, 70 Me., 588. 



THE CONSTITUTION OF MAINE. 507 

in their judgment may require secrecy ; and the yeas and 
nays of the members of either house on any question, 
shall, at the desire of one-fifth of those present, be 
entered on the journals. 

[See pages 161-2.] 

In conformity with this clause, the proceedings of each 
House are published as soon after its adjournment as they 
can be conveniently printed. 

SEC. 6. Each house, during its session, may punish 
by imprisonment any person, not a member, for disre- 
spectful or disorderly behavior in its presence, for ob- 
structing any of its proceedings, threatening, assaulting 
or abusing any of its members for anything said, done, 
or doing in either house ; provided, that no imprisonment 
shall extend beyond the period of the same session. 

Section 4 gives to each House the power to punish its 
members for disorderly behavior ; this section makes per- 
sons not their members punishable for contempt of their 
authority or invasion of their rights ; thus conferring 
upon them a power not possessed by either branch of 
the National Congress. 1 

Sec. 7. The senators and representatives shall receive 
such compensation, as shall be established by law ; but 
no law increasing their compensation shall take effect 
during the existence of the Legislature which enacted it. 
The expenses of the House of Representatives in traveling 
to the Legislature and returning therefrom, once in each 
session and no more, shall be paid by the State out of the 
public treasury to every member, who shall seasonably 
attend, in the judgment of the house, and does not depart 
therefrom without leave. 

[See page 164.] 

*See p. 160. 



508 OUR SYSTEM OF GOVERNMENT. 

The pay of the members of the Legislature from 1820 
to 1859, inclusive, was $2.00 a day for attendance; since 
1859, it has been $150.00 for the regular session, and 
$2.00 a day in case of extra sessions. 

The pay of the President of the Senate and of the 
Speaker of the House has always been double that of the 
other members. 

Each member is also paid "two dollars for every ten 
miles of travel from his place of abode, once at each ses- 
sion;" i. e., for every ten miles that he travels in going to 
the place where the Legislature meets, but not for the 
distance traveled in returning therefrom. 1 

Sec. 8. The senators and representatives shall, in all 
cases except treason, felony or breach of the peace, be 
privileged from arrest during their attendance at, going 
to, and returning from each session of the Legislature ; 
and no member shall be liable to answer for anything 
spoken in debate in either house, in any court or place 
elsewhere. 

[See pages 166-168.] 

Sec. 9. Bills, orders or resolutions, may originate in 
either house, and may be altered, amended or rejected in 
the other ; but all bills for raising a revenue shall origi- 
nate in the House of Representatives, but the Senate 
may propose amendments as in other cases ; provided, 
that they shall not under color of amendment, intro- 
duce any new matter, which does not relate to raising a 
revenue. 

[See pages 171-173.] 

The object of the last part of this section is to keep 
the bills for levying taxes distinct from all other measures, 



Opinions of the Justices, 69 Me., p. 596. 



THE CONSTITUTION OF MAINE. 509 

and to prevent the Senate from compelling the House to 
consent to any measure, by making such measure a part 
of a bill that must be passed in order to meet the running 
expenses of the Government. 

SEC. 10. No senator or representative shall, during 
the term for which he shall have been elected, be ap- 
pointed to any civil office of profit under this State, 
which shall have been created, or the emoluments of 
which increased during such term except such offices as 
may be filled by elections by the people, provided^ that 
this prohibition shall not extend to the members of the first 
Legislature. 

[See page 168.] 

The object of the final provision in this section was 
clearly stated by a member of the convention : — 

"The proviso seems to be necessary. You are to 
organize a new government and to this end must create 
many new offices. Your first legislature will be extensive 
and as its business will be important, it will require most 
of the talents of the State. Were you to exclude all 
these, it is doubtful where you could find a sufficient 
number of suitable men to fill the offices. The people 
would be exceedingly embarrassed, not knowing whom to 
elect and whom to reserve for office." I 

SEC. 11. No member of Congress, nor person holding 
any office under the United States (post-officers excepted) 
nor office of profit under this State, justices of the peace, 
notaries public, coroners and officers of the militia ex- 
cepted, shall have a seat in either house during his being- 
such member of Congress, or his continuing in such office. 



*Mr. Holmes of Alfred, Me. Const. Con., Nash, p. 226. 



510 OUR SYSTEM OF GOVERNMENT. 

This section seeks to secure the legislative branch 
against any direct influence by the co-ordinate depart- 
ments of our State Government, or by the Government of 
the United States. The exceptions to the general rule 
here laid down, are made as a matter of convenience, and 
the officers designated are not such as would, in all 
probabilities, ever have any reason or tendency to inter- 
fere with the attainment of the desired end. 

SEC. 12. Neither house shall, during the session, with- 
out the consent of the other, adjourn for more than two 
days, nor to any other place than that in which the houses 
shall be sitting. 

[See p. 163.] 

SEC. 13. The Legislature shall, from time to time, 
provide, as far as practicable, by general laws, for all mat- 
ters usually appertaining to special or private legislation. 

SEC. 14. Corporations shall be formed under general 
laws, and shall not be created by special acts of the 
Legislature, except for municipal purposes, and in cases 
where the objects of the corporation cannot otherwise be 
attained ; and, however formed, they shall forever be 
subject to the general laws of the State. 

[These sections were added to the Constitution bv Amendment 
XIV., adopted in 1875.] 

" Special or private legislation " is legislation which 
purports to be local in its nature, or which has reference 
primarily to the advantage of certain individuals or or- 
ganizations rather than to that of all the people of the 
State; e. g., an act regulating the taking of fish in a cer- 
tain body of water, or applying only to a certain city or 
town, or granting to a certain person or corporation 



THE CONSTITUTION OF MAINE. 5 I I 

privileges and powers which they could not acquire or 
exercise under the general laws. 

Acts of this nature may at times and under certain cir- 
cumstances be necessary and for the public advantage, 
but they should be the exception, for the first principle 
of our system of government is the essential equality of 
all before the law. 

The Fifteenth Amendment was adopted for the purpose 
of checking the abuses arising from special legislation, but 
from the discretion that it left in the Legislature, it has 
been productive of no substantial result, and the time 
and attention of this body is being more and more taken 
up by the consideration of private measures to the 
neglect and detriment of the public interests. 

The provision that corporations " shall forever be sub- 
ject to the general laws of the State" takes away from 
them that independence of State control which they would 
possess if some reservation of this nature were not made. 1 

Prior to 1875, a similar reservation existed in virtue of 
a general law enacted by the Legislature in 1831. 

SEC. 15. The Legislature shall, by a two-thirds con- 
current vote of both branches, have the power to call 
constitutional conventions, for the purpose of amending 
this Constitution. 

This section was made a part of the Constitution as the 
Nineteenth Amendment, adopted in 1875. Its object is 
to enable the Legislature to summon a convention for the 
purpose of amending the Constitution, or of framing a new 
one if the present organic law of the State becomes too 

'See p. 272. 



512 OUR SYSTEM OF GOVERNMENT. 

complex or too fragmentary through frequent amend- 
ments, or in any other manner faulty or deficient. 

In the very nature of the case, a State constitution will 
need to be more frequently modified than will the National 
Constitution, for while the latter is, in the main, but an 
embodiment of those great principles of public law and of 
government that are the same for all ages, the former 
must to a great extent be a reflection of the social and 
industrial life of the people. 

ARTICLE V.— Part First. 

EXECUTIVE POWERS. 

SEC. i. The supreme executive power of this State 
shall be vested in a Governor. 
[See page 278.] 

The Governor is made by this clause the head of the 
executive department of our State Government, and upon 
him devolves the duty of taking " care that the laws be 
faithfully executed," x and in the performance of this duty 
he may act according to his best judgment and alone is 
responsible to the people. " He may issue commissions, 
sign warrants, remit penalties, grant reprieves, commuta- 
tions and pardons, but he does all this by and with the 
advice of his council," which to this extent is a part of 
the Executive Department. 

" If he was clothed with supreme and uncontrolled 
executive power, the council would have no duties. His 
powers are only what are given him by the constitution 
or necessarily inferable from powers clearly granted. He 



'See Section 12, of this Article. 



THE CONSTITUTION OF MAINE. 5 I 3 

is to execute the powers conferred, in the manner and 
under the methods and limitations prescribed by the 
constitution and the statute enacted in accordance there- 
with." l 

SEC. 2. The Governor shall be elected by the qualified 
electors, and shall hold his office one year from the first 
Wednesday of January in each year. 

[See Amendment XXIII.] 

Sec. 3. The meetings for election of governor shall be 
notified, held, and regulated, and votes shall be received, 
sorted, counted, declared and recorded, in the same man- 
ner as those for senators and representatives. They shall 
be sealed and returned into the secretary's office in the 
same manner, and at the same time as those for senators. 
And the secretary of state for the time being shall, on the 
first Wednesday of January, then next, lay the lists before 
the Senate and House of Representatives, and also the 
lists of votes of citizens in the military service returned 
into the secretary's office, to be by them examined, and, 
in case of a choice by a majority of all the votes returned, 
they shall declare and publish the same. But if no person 
shall have a majority of votes, the House of Representa- 
tives shall, by ballot, from the persons having the four 
highest numbers of votes on the lists, if so many there be, 
elect two persons and make return of their names to the 
Senate, of whom the Senate shall, by ballot, elect one, 
who shall be declared the Governor. 

[See Amendment XXIV.] 

By Article IV., Part First, Section 5, the duty devolves 
upon the Governor and Council of examining the lists of 
votes for senators and representatives returned by the 



Opinions of the Justices, 72 Me., 546. 
33 



514 OUR SYSTEM OF GOVERNMENT. 

municipal officers, and of issuing summonses to such as 
appear thereby to be elected. Obviously, however, it 
would be highly improper to give to this body the same 
power in regard to the lists of votes cast for Governor ; 
hence, this section requires that they shall be submitted 
to the House of Representatives. 

Sec. 4. The Governor shall, at the commencement of 
his term, be not less than thirty years of age ; a natural 
born citizen of the United States, have been five years, 
■or from the adoption of this Constitution, a resident of the 
State ; and at the time of his election and during the 
term for which he is elected, be a resident of said State. 

The provisions of this section are so manifestly just and 
proper that comment upon them would be superfluous. 

Sec. 5. No person holding any office or place under 
the United States, this State, or any other power, shall 
exercise the office of Governor. 

The Governor upon entering his high office, should be 
uninfluenced by any consideration other than that of dis- 
charging the duties appertaining to it for the best interests 
of the State. 

Sec. 6. The Governor shall at stated times, receive for 
his services a compensation, which shall not be increased 
or diminished during his continuance in office. 

[See page 297.] 

The salary of the Governor from 1820 to 1867, inclu- 
sive, also for the year 1880, was $1,500 a year; from 
1868 to 1879, inclusive, $2,500 a year, and from 1881 to 
the present time, $2,000. 



THE CONSTITUTION OF MAINE. 515 

SEC. 7. He shall be commander-in-chief of the army 
and navy of the State and of the militia, except when 
called into the actual service of the United States ; but he 
shall not march nor convey any of the citizens out of the 
State, without their consent or that of the Legislature, 
unless it shall become necessary, in order to march or 
transport them from one part of the State to another for 
the defence thereof. 

[See page 299.] 

From the very nature of the National and the State 
Governments, the functions of the latter are internal, and 
the use by the Governor of the military force of the State 
must be confined to securing the orderly administrations 
of the laws of the State, suppressing insurrections, and 
repelling invasions. Whenever the occasion arises that 
involves a call for the troops of a State to go beyond its 
limits, it is a matter exclusively within the authority of 
the National Government. 

SEC. 8. He shall nominate, and, with the advice and 
consent of the council, appoint all judicial officers, coron- 
ers, and notaries public ; and he shall also nominate, and 
with the advice and consent of the council, appoint all 
other civil and military officers, whose appointment is not 
by this Constitution, or shall not by law be otherwise 
provided for ; and every such nomination shall be made 
seven days, at least, prior to such appointment. 

In this State, the Council acts as a check upon the 
Governor in appointments to office and in certain other 
respects set forth in Section 2. Unlike the Senate of the 
United States, however, this body is in these matters a 
part of the executive, being " specially created to advise 



5 1 6 OUR SYSTEM OF GOVERNMENT. 

the Governor in the executive part of the government." 
Hence appointment to office being one of the general 
executive functions in which the Council by the Constitu- 
tion is made to share, the consent of this body is also 
requisite to removal from office, except in the case of 
those officers whose appointments is vested by law in the 
Governor alone. 1 

This section, as it originally stood, included among 
those to be appointed by the Governor and Council, the 
Attorney General, the Land Agent, sheriffs, and judges 
and registers of probate. The Ninth Amendment, adopted 
in 1855, provided that the Attorney General and the Land 
Agent should be elected by the Legislature, that the 
judges and registers of probate should be elected for the 
term of four years by a plurality of the votes of the peo- 
ple of the respective counties, and that the judges of the 
municipal and police courts should be elected for four 
years by the people of their respective cities and towns. 
By the Sixteenth Amendment, adopted in 1877, however, 
the appointment of the last-named official was restored to 
the Governor and Council. By the Eighteenth Amend- 
ment, adopted in 1875, the constitutional provision for 
the appointment of a Land Agent was annulled. 

The last provision of this section insures to the Council 
time to investigate carefully and pass intelligently upon 
whatever nominations the Governor may make. 

SEC. 9. He shall from time to time give the Legisla- 
ture information of the condition of the State, and recom- 



^ee Opinions of Justices, 72 Me., 542. 



THE CONSTITUTION OF MAINE. 517 

mend to their consideration such measures, as he may 
judge expedient. 
[See page 311.] 

At the opening of each regular session of the Legisla- 
ture, the Governor in his inaugural address makes a 
detailed statement concerning " the condition of the State 
and of those matters pertaining to the Government and 
to public institutions, which may be of interest to the 
Legislature and to the people generally. Also from time 
to time he sends special messages to the Legislature, giv- 
ing information, or recommending the adoption of such 
measures as he may think would be of public advantage. 

Sec. 10. He may require information from any mili- 
tary officer or any officer in the executive department, 
upon any subject relating to the duties of their respective 
offices. 

The power vested in the Governor by this section is 
clearly so indispensable for him to possess in order to be 
in a position to "take care that the laws be faithfully exe- 
cuted," that it scarcely seems necessary to make express 
provision in the Constitution to this effect. 

SEC. 11. He shall have power, with the advice and 
consent of the council, to remit, after conviction, all for- 
feitures and penalties, and to grant reprieves, commuta- 
tions and pardons, except in cases of impeachment, upon 
such conditions, and with such restrictions and limitations, 
as may be deemed proper, subject to such regulations as 
may be provided by law, relative to the manner of apply- 
ing for pardons. And he shall communicate to the 
Legislature at each session thereof, each case of reprieve, 






5 1 8 OUR SYSTEM OF GOVERNMENT. 

remission of penalty, commutation or pardon granted, 
stating the name of the convict, the crime of which he 
was convicted, the sentence and its date, the date of the 
reprieve, remission, commutation or pardon, and the con- 
ditions, if any, upon which the same was granted. 

[See pages 302-304. The part of this section which follows the 
phrase, "except in cases of impeachment" was added to the organic 
law bv the Fifteenth Amendment, adopted in 1875.] 

By this clause the power of the Governor to exercise 
executive clemency, unlike that of the President of the 
United States, can be exercised only after the conviction 
of the offender. 

The object of the latter provision of this section is, 
obviously, to hold the Governor to a strict sense of 
responsibility to the people for any abuse of this impor- 
tant power. 

Sec. 12. He shall take care that the laws be faithfully 
executed. 

[See page 278.] 

Sec. 13. He may, on extraordinary occasions, convene 
the Legislature ; and in case of disagreement between 
the two houses with respect to the time of adjournment, 
adjourn them to such time as he shall think proper, not 
beyond the day of the next annual meeting ; and if, 
since the last adjournment, the place where the Legisla- 
ture were next to convene shall have become dangerous 
from an enemy or contagious sickness, may direct the 
session to be held at some other convenient place within 
the State. 

[See Amendment XXIII. and pages 312-3.] 

The members of the Legislature, scattered as they are 
throughout the State, would have so great difficulty in 
reaching a well-understood agreement as to a special 



THE CONSTITUTION OF MAINE. 419 

place of assembling, in the contingencies set forth in the 
latter provision of this section, that the propriety of vest- 
ing power of selecting in such cases the place where its 
session is to be held, is obviously necessary and proper. 

Sec. 14. Whenever the office of Governor shall be- 
come vacant by death, resignation, removal from office or 
otherwise, the president of the Senate shall exercise the 
office of Governor until another Governor shall be duly 
qualified ; and in case of the death, resignation, removal 
from office or disqualification of the president of the 
Senate, so exercising the office of Governor, the speaker 
of the House of Representatives shall exercise the office, 
until a president of the Senate shall have been chosen ; 
and when the office of Governor, president of the Senate, 
and speaker of the House shall become vacant, in the 
recess of the Senate, the person, acting as Secretary of 
State for the time being, shall by proclamation convene 
the Senate, that a president may be chosen to exercise 
the office of Governor. And whenever either the presi- 
dent of the Senate or speaker of the House shall so exer- 
cise said office, he shall receive only the compensation of 
Governor, but his duties as president or speaker shall be 
suspended ; and the Senate or House shall fill the vacancy 
until his duties as Governor shall cease. 

In 1 82 1, on the resignation of William King from the 
office of Governor, William D. Williamson, the President 
of Senate assumed the office ; Mr. Williamson resigning 
to become a representative to Congress, the place was 
filled by Benjamin Ames, the Speaker of the House of 
Representatives. In 1827, Governor Enoch Lincoln died 
in office, and the President of the Senate, Nathan Cutler, 
assumed the duties of the position. In 1843, Governor 
John Fairfield, being elected to the Senate of the United 



520 OUR SYSTEM OF GOVERNMENT. 

States, resigned, and Edward Kavanagh completed the 
unexpired term. In 1857, Governor Hannibal Hamlin, 
who was also elected to the National Senate, was suc- 
ceeded by Joseph H. Williams. In 1887, Governor 
Joseph R. Bodwell died in office, and the vacancy was 
filled by Sebastian S. Marble. 

ARTICLE V.— Part Second. 

council. 

Sec. 1. There shall be a Council, to consist of seven 
persons, citizens of the United States, and residents of 
this State, to advise the Governor in the executive part of 
government, whom the Governor shall have full power, at 
his discretion, to assemble ; and he with the councillors, 
or a majority of them, may from time to time, hold and 
keep a Council, for ordering and directing the affairs of 
State, according to law. 

The Council was created for the purpose of assisting 
the Governor in the performance of the duties pertaining 
to his office and to act as a check upon him in certain 
specified respects ; but in these respects, the Constitution 
makes it, in fact, a part of the Executive Department. 1 

Sec. 2. The councillors shall be chosen annually, on 
the first Wednesday of January, by joint ballot of the 
senators and representatives in convention ; and vacan- 
cies, which shall afterwards happen, shall be filled in the 
same manner; but not more than one councillor shall be 
elected from any district, prescribed for the election of 
senators ; and they shall be privileged from arrest in the 
same manner as senators and representatives. 

[See Amendment XXIII.] 

1 See Art. V., Part First, Sections 1, 8, 11, 12, and discussions there- 
on ; also Section 4, Part Fourth, of this Article. 



THE CONSTITUTION OF MAINE. 52 1 

The following arrangement for councillor districts for 
the decade ending 1902 was adopted in a convention of 
the members of the two branches of the Legislature of 
1891-2 : — 

The counties of York and Oxford constitute the first 
district; Cumberland, the second; Androscoggin, Somer- 
set, and Franklin, the third ; Kennebec, Lincoln, and 
Sagadahoc, the fourth ; Hancock, Knox, and Waldo, the 
fifth ; Penobscot and Piscataquis, the sixth ; Aroostook 
and Washington, the seventh. 

Sec. 3. The resolutions and advice of Council, shall 
be recorded in a register, and signed by the members 
agreeing thereto, which may be called for by either house 
of the Legislature ; and any councillor may enter his dis- 
sent to the resolution of the majority. 

The obvious purpose of this section is to secure the 
individual responsibility of the members of the Council. 

Sec. 4. No member of Congress, or of the Legisla- 
ture of this State, nor any person holding any office 
under the United States, (post officers excepted), nor 
any civil officers under this State (justices of the peace 
and notaries public excepted) shall be councillors. And 
no councillor shall be appointed to any office during the 
time for which he shall have been elected. 

[See page 168, and Article III., Sections 1,2.] 

ARTICLE V.— Part Third. 

secretary. 

Sec. 1. The Secretary of State shall be chosen annu- 
ally at the first session of the Legislature, by joint ballot 
of the senators and representatives in convention. 

fSee Amendment XXIII.] 



522 OUR SYSTEM OF GOVERNMENT. 

SEC. 2. The records of the State shall be kept in the 
office of the Secretary, who may appoint his deputies, for 
whose conduct he shall be accountable. 

This section makes the Secretary of State the custodian 
of all the official records of the Government, his duties in 
this respect, and in that of keeping in his charge the seal 
of the State being similar to those of the Secretary of 
State of the National Government. The law provides for 
one deputy Secretary of State at the same salary as that 
of the Secretary. 

Sec. 3. He shall attend the Governor and Council, 
Senate and House of Representatives, in person or by 
his deputies, as they shall respectively require. 

Having in charge the official records, the Secretary of 
State and his deputy have information, or means of 
acquiring information, which might be of the greatest 
importance to the Legislative and Executive Depart- 
ments ; hence, these Departments should have an un- 
questionable right to call upon either of them for this 
information as it may see fit. 

Sec. 4. He shall carefully keep and preserve the 
records of all the official acts and proceedings of the 
Governor and Council, Senate and House of Representa- 
tives, and, when required, lay the same before either 
branch of the Legislature, and perform such other duties 
as are enjoined by this Constitution, or shall be required 
by law. 

When a bill that has duly passed both Houses of the 
Legislature and been signed by the Governor is deposited 
in the office of the Secretary of State, it becomes a law; 



THE CONSTITUTION OF MAINE. 523 

while it remains in the hands of the Governor he' may- 
veto it, or if he has signed it, remove his signature. 
When, however, the act has been deliberately deposited 
in the Secretary's office by the Governor, it is beyond his 
recall, and it becomes the duty of the Secretary to " care- 
fully keep and preserve" it. 1 

Among the duties which the Secretary is required by 
the Constitution and the law to perform, are to cause all 
public laws passed at each session of the Legislature to be 
printed and published within thirty days after the close 
thereof, to give written notice to the Senate and House of 
Representatives of the approval by the Governor of the 
public measures that they have enacted, to prepare com- 
missions for the Governor's signature, and to affix the seal 
of the State thereto and to all other documents requiring 
to be thus attested, to prepare and distribute ballots, 
blanks for election returns, etc. 

ARTICLE V.— Part Fourth. 

TREASURER. 

Sec. 1. The Treasurer shall be chosen annually, at 
the first session of the Legislature, by joint ballot of the 
senators and representatives in convention, but shall not 
be eligible more than five years successively. 

[See Amendment XXIII.] 

AMENDMENT XXVII. 

ELIGIBILITY OF THE TREASURER OF STATE. 

The Treasurer shall be chosen biennially, at the first 
session of the Legislature, by joint ballot of the Senators 



Weeks vs. Smith, 81 Me., 538. 



524 OUR SYSTEM OF GOVERNMENT. 

and Representatives in Convention but shall not be 

eligible more than six years successively. 

[The Twenty-seventh Amendment was proposed to the people by a 
resolve of the Sixty-third Legislature, approved March 10, 1887 ; 
adopted September 10; proclaimed by Governor Marble December 14, 
1888, and took effect on the first Wednesday of January, 1889.] 

The provision that a person " shall not be eligible more 
than five years successively" to the office of Treasurer is 
a wise safeguard against the opportunity which this officer 
might have to defraud the State, if he were allowed to 
control the public funds for an indefinite length of time. 

The Twenty-seventh Amendment to the Constitution 
was made in consequence of the change from the annual 
to the biennial election of the Treasurer. 

Sec. 2. The Treasurer shall, before entering on the 
duties of his office, give bond to the State, with sureties, 
to the satisfaction of the Legislature, for the faithful 
discharge of his trust. 

The Legislature, bv general law, has fixed the amount 
of this bond at not less than one hundred and fifty 
thousand dollars. 

SEC. 3. The Treasurer shall not, during his continu- 
ance in office, engage in any business of trade or com- 
merce, or as a broker, nor as an agent or factor for any 
merchant or trader. 

The object of this provision is to lessen the chance that 
the Treasurer might be tempted to divert the public funds 
to his own use. Such a diversion is also forbidden by 
law under severe penalties. 

SEC. 4. No money shall be drawn from the treasury, 
but bv warrant from the Governor and Council, and in 



THE CONSTITUTION OF MAINE. 525 

consequence of appropriations made by law ; and a regu- 
lar statement and account of the receipts and expendi- 
tures of all public money, shall be published at the 
commencement of the annual session of the Legislature. 
[See Amendment XXIII. and page 263.] 

ARTICLE VI. 

JUDICIAL POWER. 

Sec. 1. The judicial power of this State shall be 
vested in a Supreme Judicial Court, and such other 
courts as the Legislature shall from time to time establish. 

[See pages 318, 319, 327-329, 330, 335.] 

The existing courts established by the Legislature of 
the State are the Supreme Judicial Court, the Superior 
Courts of Cumberland and Kennebec counties, the munici- 
pal and police courts, the courts of trial justices, and the 
probate courts. 

The Supreme Judicial Court consists of a Chief Justice 
and seven associate Justices, who individually hold court 
in the shire towns of the different counties for the trial of 
civil and criminal cases. The courts thus held sit with a 
jury except in suits in equity or in cases where the right 
to a jury is waived by the parties to the controversy. 
The members of the Supreme Judicial Court also sit col- 
lectively as a law or appellate court to determine questions 
of law properly brought before them from the trial or 
probate courts. 

This law court is composed of five or more justices, who 
determine the cases brought before them by the concur- 
rence of five members, but when any of them cannot act 
by reason of interest or other disqualification, a majority 



526 OUR SYSTEM OF GOVERNMENT. 

of the rest is sufficient. 1 No Justice, however, is allowed 
to sit in the law court upon the hearing of any cause tried 
before him in which his rulings or findings are the subject 
of review. 2 

For the purpose of the law court, the State is divided 
into three districts, the Western, the Middle, and the 
Eastern. For the Western District, an annual session is 
held at Portland on the third Tuesday of July ; for the 
Middle, at Augusta, on the fourth Tuesday of May; for 
the Eastern, at Bangor, on the third Tuesday of June. 

The decisions rendered at these law courts are col- 
lated and arranged by the Reporter and appear as the 
" Maine Reports." 3 

The counties of Cumberland and Kennebec each have 
a Superior Court that transacts a large amount of busi- 
ness that in other counties devolves upon the Supreme 
Judicial Court. A justice, not a member of the Supreme 
Judicial Court, is appointed to preside over each of these, 
and appeals are taken from them directly to the law 
court. 

Municipal and police courts are established in cities 
and large towns by special acts of the Legislature. These 
courts sit without a jury, hence cannot have final jurisdic- 
tion of controversies involving more than twenty dollars 
exclusive of costs. The acts by which these courts are 
respectively established and organized usually give them 
jurisdiction concurrent with that of the Supreme Judicial 
Court for larger amounts, but in such cases, appeal may 
always be taken to the higher tribunal. 

^ev. Statutes Me., Ch. 77, Sec. 38. 

2 Public Laws Me., 1895, Ch. 140. 3 See p. 324. 



THE CONSTITUTION OF MAINE. 527 

Trial by jury in cases involving more than twenty dol- 
lars was an established right at the time of the adoption 
of the Constitution ; hence, is now guaranteed by this 
instrument. 1 

In all criminal suits brought in a municipal court or 
before a trial justice, appeal may also be taken to the 
Supreme Judicial Court, for the Constitution secures to 
the accused in all criminal prosecutions the right of trial 
by jury. 2 , 

The jurisdiction of trial justices in civil suits is always 
limited to twenty dollars. 

It is the duty, also, of municipal judges and trial jus- 
tices, on complaint being made, to cause to be arrested 
persons charged with having committed a crime, and if 
the crime whereof any person so arrested stands accused 
is not within their jurisdiction, to cause him to recognize 
(give bail) with sufficient securities to await the action 
of the grand jury, or in default of sureties, to commit 
him to jail. 

Probate courts, presided over by a judge, are estab- 
lished in each county for the probate of wills, the grant- 
ing of letters testamentary or of administration, for the 
appointment of guardians, etc. ; these courts are also the 
Courts of insolvency for their respective counties. From 
their decisions appeal may be taken to the Supreme 
Judicial Court. 

SEC. 2. The justices of the Supreme Judicial Court 
shall, at stated times receive a compensation, which shall 



'Section 20, Declaration of Rights. 
'Section 6, Declaration of Rights. 



528 OUR SYSTEM OF GOVERNMENT. 

not be diminished during their continuance in office, but 
they shall receive no other fee or reward. 

[See p. 322.] 

The salary of a Justice of the Supreme Judicial Court is 
$3,000 a year; of the Justice of the Superior Court of 
Cumberland county, $2,500 ; of Kennebec county, $2,000. 
The municipal and police judges are paid from the treas- 
uries of the cities where their courts are respectively 
located ; the trial justices receive their compensation in 
the form of fees ; the probate judges are paid out of the 
treasuries of their respective counties. 

SEC. 3. They shall be obliged to give their opinion 
upon important questions of law, and upon solemn oc- 
casions, when required by the Governor, Council, Senate, 
or House of Representatives. 

By this section, the Supreme Judicial Court is made to 
a certain extent the legal adviser of the other depart- 
ments of the State Government. The opinion of the 
court cannot be given to any branch of the Government 
until it is called for, but when such a call is made and 
complied with, the opinion given should be respected 
and followed, for the Constitution and the laws are as 
binding upon persons acting in an official capacity as 
they are upon private individuals. 

Sec. 4. All judicial officers now in office or who may 
be hereafter appointed shall, from and after the first day of 
March in the year eighteen hundred and forty, hold their 
offices for the term of seven years from the time of their 
respective appointments, (unless sooner removed by im- 
peachment or by address of both branches of the Legis- 



THE CONSTITUTION OF MAINE. 529, 

lature to the Executive) and no longer unless re-appointed 
thereto. 

The Constitution originally made the term of office of 
all judicial officers, except justices of the peace, during 
good behavior, but not beyond the age of seventy years. 
This was superseded by the present section, which was 
adopted as the Third Amendment in 1839. 

SEC. 5. Justices of the peace and notaries public, 
shall hold their offices during seven years, if they so long~ 
behave themselves well, at the expiration of which term, 
they may be re-appointed or others appointed, as the 
public interest may require. 

In this State there are three grades of justices of the 
peace recognized : — Justices of the peace, justices of the 
peace and the quorum, and trial justices ; practically, the 
functions and powers of the two first named are the 
same ; they are given power by statute to solemnize 
marriages, to take acknowledgments of deeds, deposi- 
tions, etc. ; the justices of peace and the quorum are 
commissioned to act for and within every county. A 
trial justice has all the powers of a justice of the peace 
and the quorum, his trial jurisdiction, however, is limited 
to the county in which he resides. 

A notary public is an officer whose attestation of deeds 
and other writings is recognized in other States and coun- 
tries as authenticating them. He may, also, on behalf of 
any person interested, notify the endorser of a note or 
bill of exchange in case it is not paid when due, and 

the "protest" made through him places the proper noti- 
34 



530 OUR SYSTEM OF GOVERNMENT. 

fication to the endorser beyond dispute. A notary public 
is required to keep a record of all his official acts, and to 
make all his attestations with an official seal ''whereon is 
engraven his name, and the words ' notary public ' and 
' Maine,' with arms of the State, or such other device as 
he chooses." I 

Sec. 6. The justices of the Supreme Judicial Court 
shall hold no office under the United States, nor any 
State, nor any other office under this State, except that 
of justice of the peace. 

[See Article III., Sections i, 2.] 

Above all other departments of government, the Judic- 
iary should be free from suspicion of bias or external in- 
fluence ; hence, the wisdom and propriety of this section. 

SEC. 7. Judges and registers of probate shall be 
elected by the people of their respective counties, by a 
plurality of the votes given in at the annual election, on 
the second Monday of September, and shall hold their 
offices for four years, commencing on the first day of 
January next after their election. Vacancies occurring in 
said offices by death, resignation or otherwise, shall be 
filled by election in manner aforesaid, at the September 
election next after their occurrence ; and in the meantime, 
the Governor, with the advice and consent of the Council, 
may fill said vacancies by appointment, and the persons 
so appointed shall hold their offices until the first day of 
January thereafter. 

[See Amendment XXIII. and Article V., Part First, Section 8.] 

A register of probate, as the name indicates has charge 
of the records of the probate office and is the responsible 
clerical officer of this court. 



l Rev. Statutes, Me., Ch. 32, Sec. 1. 



THE CONSTITUTION OF MAINE. 53 1 

SEC. 8. Judges of municipal and police courts shall 
be appointed by the executive power, in the same manner 
as other judicial officers, and shall hold their offices for 
the term of four years; provided, however, that the present 
incumbents shall hold their offices for the term for which 
they were elected. 

[See Article V., Part First, Section 8.] 

ARTICLE VII. 

MILITARY. 

SEC. i. The captains and subalterns of the militia 
shall be elected by the written votes of the members of 
their respective companies. The field officers of regi- 
ments by the written votes of the captains and subalterns 
of their respective regiments. The brigadier generals 
in like manner, by the field officers of their respective 
brigades. 

[See pages 245-6.] 

The object of this section is to maintain a close con- 
nection and sympathy between the citizen soldiery and 
the people. In fact, if any other method of appointing 
the company officers prevailed, it would probably be diffi- 
cult to maintain the militia at any degree of efficiency in 
time of peace. 

SEC. 2. The Legislature shall, by law, direct the man- 
ner of notifying the electors, conducting the elections, 
and making returns to the Governor of the officers 
elected ; and, if the electors shall neglect or refuse to 
make such elections, after being duly notified according 
to law, the Governor shall appoint suitable persons to fill 
such offices. 

The Legislature has provided that the elections of the 



532 OUR SYSTEM OF GOVERNMENT. 

officers of the volunteer militia, now designated by law as 
the " National Guard of the State of Maine," shall be 
ordered by the commander-in-chief, (the Governor), the 
electors, as set forth in Section I, being notified at least 
four days previous to any election in which they are 
entitled to take part. It is also required that an officer 
of a grade at least equal to that of the office to be filled 
shall be designated to preside over the election, and 
make returns thereof to the commander-in-chief. 

Sec. 3. The major general shall be elected by the 
Senate and House of Representatives, each having a nega- 
tive on the other. The adjutant general and quarter- 
master general shall be chosen annually by joint ballot 
of the senators and representatives in convention. But 
the adjutant general shall perform the duties of quarter- 
master general, until otherwise directed by law. The 
major generals and brigadier generals, and the command- 
ing officers of regiments and battalions, shall appoint their 
respective staff officers ; and all military officers shall be 
commissioned by the Governor. 

[See Amendment XXIII. ] 

By the original Constitution the adjutant general and 
quartermaster general were appointed by the Governor 
and Council. The Ninth Amendment adopted in 1855 
gave the appointment of these officers to the Legislature 
as by Section 3. In 1893, however, it was vested in the 
Governor alone by the adoption of Amendment XXVII. 

AMENDMENT XXVIII. 

APPOINTMENT OF ADJUTANT GENERAL. 

The major generals shall be elected by the Senate and 
House of Representatives each having a negative on the 



THE CONSTITUTION OF MAINE. 533 

other. The adjutant general and quartermaster general 
shall be appointed by the governor. But the adjutant 
general shall perform the duties of quartermaster general 
until otherwise directed by law. The major generals and 
brigadier generals and the commanding officers of regi- 
ments and battalions, shall appoint their respective staff 
officers ; and all military officers shall be commissioned 
by the governor. 

[The Twenty-eighth Amendment was proposed to the people by a 
resolve of the Sixty-fourth Legislature approved March 31, 1891 ; 
adopted Sept. 12, 1892; proclaimed by Governor Burleigh Dec. 13, 
1892, and took effect on the first Wednesday of January, 1893.] 

The main duties of the adjutant general and the 
quartermaster general are to give effect to the orders of 
the Governor as commander-in-chief, and, generally, in 
their respective departments, to assist him in the perform- 
ance of his military duties ; hence, the power to name 
these officers is very properly vested in him by this 
Amendment. 

SEC. 4. The militia, as divided into divisions, brigades, 
regiments, battalions and companies pursuant to the laws 
now in force, shall remain so organized, until the same 
shall be altered by the Legislature. 

The words " now in force" had reference to the or- 
ganization of the militia as it existed at the time of the 
adoption of the Constitution. At present, the organiza- 
tion of the National Guard is made to conform, as nearly 
as may be, to that of the regular army of the United 
States. 

SEC. 5 Persons of the denominations of Quakers and 
Shakers, justices of the Supreme Judicial Court and min- 
isters of the gospel may be exempted from military duty, 



534 OUR SYSTEM OF GOVERNMENT. 

but no other person of the age of eighteen and under 
the age of forty-five years, excepting officers of the 
militia who have been honorably discharged, shall be so 
exempted, unless he shall pay an equivalent to be fixed 
by law. 

[See page 241-5.] 

ARTICLE VIII. 

LITERATURE. 

A general diffusion of the advantages of education 
being essential to the preservation of the rights and liber- 
ties of the people; to promote this important object, the 
Legislature are authorized, and it shall be their duty to 
require, the several towns to make suitable provision, at 
their own expense, for the support and maintenance of 
public schools ; and it shall further be their duty to 
encourage and suitably endow, from time to time, as the 
circumstances of the people may authorize, all academies, 
colleges and seminaries of learning within the State ; 
provided, that no donation, grant or endowment shall at 
any time be made by the Legislature to any literary insti- 
tution now established, or which may hereafter be estab- 
lished, unless, at the time of making such endowment, 
the Legislature of the State shall have the right to grant 
any further powers to alter, limit or restrain any of the 
powers vested in, any such literary institution, as shall be 
judged necessary to promote the best interests thereof. 

It is provided by statute that all money arising from 
the sale of public lands is to be set aside as a permanent 
school fund. A sum equal to six per cent, of this, and 
all the money received from the tax on banks, and from a 
tax of one mill per dollar upon all the property in the 
State, according to the assessed value thereof, is annually 



THE CONSTITUTION OF MAINE. 535 

distributed among the different cities, towns, and planta- 
tions, according to the number of pupils in each. 

Every town is also required to raise and expend upon 
its schools annually not less than eighty cents for each of 
its inhabitants. 

ARTICLE IX. 

GENERAL PROVISIONS. 

SEC. i. Every person elected or appointed to either 
of the places or offices provided in this Constitution, and 
every person elected, appointed, or commissioned to any 
judicial, executive, military or other office under this 
State, shall, before he enter on the discharge of the duties 
of his place or office, take and subscribe the following 
oath or affirmation : " I do swear, that I will sup- 
port the Constitution of the United States, and of this 
State, so long as I shall continue a citizen thereof. So 
help me God." 

" I do swear, that I will faithfully discharge, to 

the best of my abilities, the duties incumbent on me as 

according to the Constitution and laws of the 

State. So help me God." Provided, that an affirmation 
in the above forms may be substituted, when the per- 
son shall be conscientiously scrupulous of taking and 1 : 
subscribing an oath. 

The oaths or affirmations shall be taken and subscribed 
by the Governor and councillors before the presiding 
officer of the Senate, in the presence of both houses of 
the Legislature, and by the senators and representatives- 
before the Governor and Council, and by the residue of 
said officers, before such persons as shall be prescribed 
by the Legislature ; and whenever the Governor or any 
councillor shall not be able to attend during the session 
of the Legislature to take and subscribe said oaths or 
affirmations, said oaths or affirmations may be taken and 



536 OUR SYSTEM OF GOVERNMENT. 

subscribed in the recess of the Legislature before any 
justice of the Supreme Judicial Court; provided, that the 
senators and representatives, first elected under this Consti- 
tittion shall take and subscribe such oaths or affirmations 
before the president of the convention. 
[See page 380.] 

Sec. 2. No person holding the office of justice of the 

Supreme Judicial Court, or of any inferior court, attorney 

general, county attorney, treasurer of the State, adjutant 

general, judge of probate, register of probate, register of 

deeds, sheriffs or their deputies, clerks of the judicial 

courts, shall be a member of the Legislature ; and any 

person holding either of the foregoing offices, elected to, 

and accepting a seat in the Congress of the United States, 

shall thereby vacate said office ; and no person shall be 

capable of holding or exercising at the same time within 

this State, more than one of the offices before mentioned. 

[See Art. III., Sec. 2; Art. IV., Part Third, Sec. 11; Art. V., Part 
First, Sec. 5.] 

Sec. 3. All commissions shall be in the name of the 
State, signed by the Governor, attested by the secretary 
or his deputy, and have the seal of the State thereto 
affixed. 

[See pages 522-523.] 

Sec. 4. And in case the elections required by this 
Constitution on the first Wednesday of January annually, 
by the two houses of the Legislature, shall not be com- 
pleted on that day, the same may be adjourned from day 
to day, until completed, in the following order; the 
vacancies in the Senate shall first be filled ; the Governor 
shall then be elected, if there be no choice by the people ; 
and afterwards the two houses shall elect the Council. 
[See Amendment XXIII.] 

Sec. 5. Every person holding any civil office under 



THE CONSTITUTION OF MAINE. 537 

this State, may be removed by impeachment, for misde- 
meanor in office ; and every person holding any office, 
may be removed by the Governor, with the advice of the 
Council, on the address of both branches of the Legisla- 
ture. But before such address shall pass either house, 
the causes of removal shall be stated and entered on the 
journal of the house in which it originated, and a copy 
thereof served on the person in office, that he may be 
admitted to a hearing in his defence. 

[See Art. IV., Part First, Sec. 8; Part Second, Sec. 7.] 

The object of the part of this section providing for the 
removal of a civil officer for misdemeanor in office on 
address of both branches of the Legislature, is to provide 
a more summary method for removing unfit or incapable 
men from office than that of impeachment. 

The address of both Houses is a resolution in favor of 
such removal. The Governor is not bound to act in con- 
formity with such address, but ordinarily will be expected 
to do so ; but he can take action only with the advice and 
consent of his Council. 

SEC. 6. The tenure of all offices, which are not or 
shall not be otherwise provided for, shall be during the 
pleasure of the Governor and Council. 

[See page 516.] 

SEC. 7. While the public expenses shall be assessed 
on polls and estates, a general valuation shall be taken at 
least once in ten years. 

SEC. 8. All taxes upon real and personal estate, 
assessed by authority of this State, shall be apportioned 
and assessed equally, according to the just value thereof. 

[Amendment XVII. ] 



538 OUR SYSTEM OF GOVERNMENT. 

SEC. 9. The Legislature shall never, in any manner, 
suspend or surrender the power of taxation. 
[See pages 184-186.] 

Formerly, the "general valuation" provided for by 
this section was made every ten years by a commission 
especially appointed for this purpose. The general valua- 
tion so made was reported to the Legislature, which ap- 
portioned the State taxes among the different towns 
accordingly. 

In 1 89 1, the Legislature provided for a permanent 
board of State assessors "whose duty it shall be to equal- 
ize the state tax among the several towns and unorganized 
townships, according to their several valuations, to fix the 
valuation of real and personal estate on which the state 
and county taxes shall be levied in each town and in unor- 
ganized townships ; and to perform the duties heretofore 
devolving upon the legislature in the apportioning of the 
state taxes among the several towns of the state." x 

Section 8 does not declare that all property shall be 
taxed, but simply that upon what is taxed the taxes shall 
be " apportioned and assessed equally." 

"The legislature has power by general law to exempt 
certain descriptions of property from taxation and lay the 
burden of supporting the government elsewhere." 2 

All taxation must be for public purposes, otherwise 
there would be a taking of private property when there is 
no public exigency. 3 Hence, a town cannot constitu- 
tionally raise money by taxation to assist in a private 



1 Public Laws of Me., 1891, Ch. 103, Sec. 5. 
2 Brewer Brick Co. vs. Brewer, 62 Me., 62. 
3 See Section 21, Declaration of Rights. 



THE CONSTITUTION OF MAINE. 539 

enterprise, either by gift or by loan; it is different, how- 
ever, if the enterprise be of a public nature, such as the 
building of a railroad, for here a public exigency may be 
regarded as existing. 

"It can never be admitted that the Constitution of this 
State permits or allows the taxation of a portion of its 
citizens for the private benefit of a chosen few, and that 
the taxes raised for, such a purpose shall be assessed with- 
out reference to uniformity of taxable property, or equal- 
ity of ratio." l 

Section 9 is a constitutional guaranty that the power of 
taxation shall always remain in the hands of the people or 
their representatives. 2 

Sec. 10. Sheriffs shall be elected by the people of 
their respective counties, by a plurality of the votes given 
in on the second Monday of September, and shall hold 
their offices for two years from the first day of January 
next after their election. Vacancies shall be filled in the 
same manner as is provided in the case of judges and 
registers of probate. 

[A part of Amendment IX. See Art. V., Part First, Sec. 8.] 

''The sheriff is the chief executive officer of the county. 
He executes the mandates and carries into effect the 
judgments of courts within his own county ; is the custo- 
dian of the county jail ; has charge of prisoners pending- 
trial, and executes the sentence of the court. He is the 
chief conservator of the peace within his own county, 
and may arrest on view all persons breaking or attempt- 



1 Brewer Brick Co. vs. Brewer, 62 Me., 62. 

2 See Section 22 of the Declaration of Rights. 



540 OUR SYSTEM OF GOVERNMENT. 

ing to break the peace. It is his duty to pursue and 
arrest criminals." l 

Ordinarily the jurisdiction of a sheriff is confined to 
his own county, but with a proper warrant he may pursue 
any person who has committed an offense therein into 
another county and arrest him there. 

The sheriff may appoint deputies to assist him, and it 
is his duty as an officer of the court to attend its sessions. 

Sec. ii. The attorney general shall be chosen annu- 
ally by joint ballot of the senators and representatives in 
the convention. Vacancy in said office, occurring when 
the Legislature is not in session, may be filled by the 
appointment of the Governor with the advice and consent 
of the Council. 

[A part of Amendment IX. ; see Art. V., Part First, Sec. 8.] 

The Attorney General is the chief prosecuting officer 
on behalf of the State, has general supervision of the 
county attorneys, who act in the same capacity for their 
respective counties ; he also is the standing counsel for 
the State in all legal matters, and in general his duties 
correspond to those of the Attorney General of the United 
States, except that he is not the official legal adviser of 
"the Executive. 2 

Sec. 12. But citizens of this State, absent therefrom 
in the military service of the United States or of this 
State, and not in the regular army of the United States, 
being otherwise qualified electors, shall be allowed to 
vote for judges and registers of probate, sheriffs, and all 
other county officers on the Tuesday next after the first 



'Eng. and Am. Encyclopedia of Law, Vol. 22, p. 525. 
2 See page 301. 



THE CONSTITUTION OF MAINE. 541 

Monday in November, in the year one thousand eight hun- 
dred and sixty-four, and their votes shall be counted and 
allowed in the same manner and with the same effect as if 
giveji on the second Monday of September in that year. 
And they shall be allowed to vote for all such officers on 
the second Monday in September annually thereafter for- 
ever. And the votes shall be given at the same time and 
in the same manner, and the names of the several candi- 
dates shall be printed or written on the same ballots with 
those for Governor, senators and representatives, as pro- 
vided in section four, article second of this Constitution. 

[This section is a part of the Tenth Amendment, adopted in 1864; 
See pages 484, 487, also Amendment XXIII.] 

SEC. 13. The Legislature may enact laws excluding from 
the right of suffrage, for a term not exceeding ten years, 
all persons convicted of bribery at any election, or of 
voting at any election, under the influence of a bribe. 

[Amendment XX., adopted in 1875.] 

"Section 75. Whoever by bribery, menace, wilful 
falsehood, or other corrupt means, directly or indirectly 
attempts to influence any voter in giving his vote or bal- 
lot, or to induce him to withhold it, or disturbs or hinders 
him in the free exercise of his right of suffrage at any 
election held under the provisions of the constitution or 
of this chapter, and whoever receives or offers to receive 
a bribe for this vote as aforesaid, shall be fined not more 
than five hundred dollars, or imprisoned not more than 
one year, and be ineligible to any office for ten years." ! 

Sec. 14. The credit of the State shall not be directly 
or indirectly loaned in any case. The Legislature shall 
not create any debt or debts, liability or liabilities, on 
behalf of the State, which shall singly or in the aggre- 
gate, with previous debts and liabilities hereafter incurred 



'Revised Statutes, Me., Ch. 4. 



542 OUR SYSTEM OF GOVERNMENT. 

at any one time, exceed three hundred thousand dollars, 
except to suppress insurrection, to repel invasion, or for 
purposes of war; but this amendment shall not be con- 
strued to refer to any money that has been, or may be 
deposited with this State by the government of the United 
States, or to any fund which the State shall hold in trust 
for any Indian tribe. 

[Amendment VI., adopted in 1847.] 

The first clause of this section wisely guards against 
any attempt to defraud the State by making it responsible 
in matters which do not concern our people as a whole. 
The meaning of the rest of the section is obvious. By 
it, the Legislature is forbidden to create large debts or 
liabilities on behalf of the State except " to suppress 
insurrection, repel invasion, or for purposes of war." 
The wisdom of the exceptions made was plainly demon- 
strated in the years 186 1-5. 

Sec. 15. The State is authorized to issue bonds payable 
within twenty-one years, at a rate of interest not exceeding 
six per cent, a year, payable semi-annually , which bonds or 
their proceeds shall be devoted solely towards the reimburse- 
ment of the expenditures incurred by the cities, towns and 
plantations of the State for war purposes during the rebel- 
lion, upon the following basis: Each city, town and planta- 
tion shall receive from the State one hundred dollars for 
every man furnished for the military service of the United 
States under and after the call of July second, eighteen 
hundred and sixty -two, and accepted by the United States 
towards its quota for the term of three years, and in the 
same proportion for every man so furnished and accepted 
for any shorter period; and the same shall be in full pay- 
ment for any claim upon the State on account of its war 
debts by any such municipality . A commission appointed 



THE CONSTITUTION OF MAINE. 543 

by the Governor and Council shall determine the amount to 
which each city, town and plantation is entitled; to be de- 
voted to such reimbursement, the surplus, if- any, to be 
appropriated to the soldiers who enlisted or were drafted 
and went at any time during the war, or if deceased, to 
their legal representatives. The issue of bonds hereby 
authorized shall not exceed in the aggregate three million 
five hundred thousand dollars, and this amendment shall 
not be construed to permit the credit of the State to be 
directly or indirectly loaned in any other case or for any 
other purpose. 

[Amendment XL, adopted in 1868.] 

This amendment, adopted for a special purpose, became 
obsolete when that purpose was accomplished. 

Sec. 15. The Legislature may by law authorize the 
dividing of towns having not less than four thousand 
inhabitants, or having voters residing on any island within 
the limits thereof, into voting districts for the election of 
representatives to the Legislature, and prescribe the man- 
ner in which the votes shall be received, counted, and the 
result of the election declared. 

[Amendment XII. , adopted in 1869.] 

In incorporating a city it is the practice of the Legisla- 
ture to set forth in its charter the number of voting dis- 
tricts, or wards, into which it is to be divided, and to 
make it the duty of the city council to revise such wards 
from time to time so as to preserve as nearly as may be 
an equal number of voters in each. 

It is provided, however, by general law that no change 
in the limits of a ward shall be valid unless approved by 
a majority of the legal registered voters of the city. 

The provisions for voting districts, which the Legisla- 



544 °UR SYSTEM OF GOVERNMENT. 

ture makes in the charter of a city, it might, also, under 
the authority of this clause make for a town " having not 
less than four thousand inhabitants." 

ARTICLE X. 

SCHEDULE. 

Sec. i. All laws now in force in this State, and not 
repugnant to this Constitution, shall remain, and be in 
force, until altered or repealed by the Legislature, or 
shall expire by their own limitation. 

This was Section 3 of the original Schedule, and had 
reference to the laws of Massachusetts in force in Maine 
at the time of the adoption of the Constitution. 

Sec. 2. The Legislature, whenever two-thirds of both 
houses shall deem it necessary, may propose amendments 
to this Constitution ; and when any amendments shall be 
so agreed upon, a resolution shall be passed and sent to 
the selectmen of the several towns, and the assessors of 
the several plantations, empowering and directing them 
to notify the inhabitants of their respective towns and 
plantations, in the manner prescribed by law, at their 
next annual meetings in the month of September, to give 
in their votes on the question, whether such amendment 
shall be made ; and if it shall appear that a majority of 
the inhabitants voting on the question are in favor of such 
amendment, it shall become a part of this Constitution. 
[See Art. IV., Part Third, Sec. 15, and discussion thereon.] 

SEC. 3. After the amendments proposed herewith shall 
have been submitted to popular vote, the chief justice of the 
Supreme Judicial Court shall arrange the Constitution, as 
amended, under appropriate titles, a7id in proper articles, 
parts and sectio?is, omitting all sections, clauses and words 



THE CONSTITUTION OF MAINE. 545 

not in force, and making no other changes in the provisions 
or lajiguage thereof, and shall submit the same to the 
Legislature at its next session. And the draft, and ar- 
rangement, when approved by the Legislature, shall be 
enrolled on parchment and deposited in the office of the 
Secretary of State ; and printed copies thereof shall be 
prefixed to the books containing the laws of the State. 
And the Constitution, with the amendments made thereto, 
in accordance with the provisions thereof, shall be the 
supreme law of the State. 

[A part of Amendment XXL, adopted in 1875 ; see page 455.] 

"The amendments proposed herewith" are those from 
the Thirteenth to the Twentieth inclusive ; all adopted in 
1875. These amendments together with the twelve pre- 
viously adopted were incorporated in the Constitution in 
the manner set forth in this section, and this instrument, 
thus codified, together with the amendments since made 
"is the supreme law of the State." 

SEC. 4. Sections one, two and five, of article ten of 
the existing Constitution, shall hereafter be omitted in 
any printed copies thereof prefixed to the laws of the 
State ; but this shall not impair the validity of acts under 
those sections ; and section five shall remain in full force, 
as part of the Constitution, according to the stipulations 
of said section, with the same effect as if contained in 
said printed copies. 

[A part of Amendment XXL, adopted in 1875.] 

" Section one," of the original Schedule, provided for 
the meeting of the first Legislature, the elections of 1820, 
and the first apportionment of senators and representa- 
tives ; " section two," the duration of the term of the first 

executive term ; and " section five," for the continuance 
35 



546 OUR SYSTEM OF GOVERNMENT. 

in their positions of persons holding office at the time of 
the adoption of the Constitution, and for the incorporation 
into this instrument of the terms and conditions ("The 
Act of Separation,") upon which Massachusetts gave her 
consent to the formation of Maine into an independent 
State. 



AMENDMENTS 

To the Amended Constitution of Maine, adopted in pursu- 
ance of the second section of the tenth article of the 
Amended Constitution. 

ARTICLE XXII. 

LIMITATION OF MUNICIPAL INDEBTEDNESS. 

No city or town shall hereafter create any debt or 
liability, which singly, or in the aggregate with previous 
debts or liabilities, shall exceed five per centum of the 
last regular valuation of said city or town; provided, how- 
ever, that the adoption of this article shall not be con- 
strued as applying to any fund received in trust by said 
city or town, nor to any loan for the purpose of renewing 
existing loans or for war, or to temporary loans to be 
paid out of money raised by taxation, during the year in 
which they are made. 

[The Twenty-second Amendment to the (Amended) Constitution of 
Maine was proposed to the people by a Resolve of the Fifty-sixth 
Legislature passed February 9, 1877, and having been adopted by the 
people at the ensuing annual election, September 10, 1877, took effect 
as a part of the Constitution January 2, 1878, according to the pro- 
visions of the Resolve and the proclamation of Governor Connor 
issued December 20, 1877.] 

To a certain extent, this amendment guards the people 
against themselves, is a restriction put upon the power of 



THE CONSTITUTION OF MAINE. 547 

the majority; but the evils that different municipalities, in 
this and other States, have suffered from creating great 
debts plainly show that the prohibition here made is not 
superfluous. 

ARTICLE XXIII. 

BIENNIAL ELECTIONS AND BIENNIAL SESSIONS. 

The governor, senators and representatives in the Legis- 
lature, shall be elected biennially, and hold office two 
years from the first Wednesday in January next succeed- 
ing their election ; and the Legislature, at the first session 
next after the adoption of this article, shall make all 
needful provisions by law concerning the tenure of office 
of all county officers, and concerning the annual or bien- 
nial reports of the State treasurer and other State officers 
and institutions ; and shall make all such provisions by 
law as may be required in consequence of the change 
from annual to biennial elections, and from annual to 
biennial sessions of the Legislature. The first election 
under .this Article shall be in the year one thousand eight 
hundred and eighty; and the first meeting of the Legisla- 
ture under this article shall be on the first Wednesday of 
January, eighteen hundred and eighty-one. 

Section four, article two ; section five, part one, article 
four; section four, part two, article four; section one, 
part three, article four; section thirteen, part one, article 
five ; section two, part two, article five ; section one, part 
three, article five ; section one, part four, article five ; 
section four, part four, article five ; section three, article 
seven ; section four, article nine, and section eleven, article 
nine, are amended, by substituting the word ' biennial ' for 
the word " annual " whenever it occurs. 

Section two, part one, article five, is amended, by strik- 
ing out all after the word "office" and substituting there- 
for the following words : ' for two years from the first 



548 OUR SYSTEM OF GOVERNMENT. 

Wednesday of January next following the election.' Sec- 
tion seven, article six, and section two, article ten, are 
hereby amended by striking out the word "annual" and 
insert in place thereof the word ' biennial.' 

[The Twenty-third Amendment was proposed to the people by a 
Resolve of the Fifty-eighth Legislature passed March 4, 1879, and 
having been adopted September 8, was declared to have become a part 
of the Constitution by a Resolve of March 18, 1880.] 

ARTICLE XXIV. 

ELECTION OF GOVERNOR BY PLURALITY VOTE. 

The Constitution of this State shall be amended, in the 

third section of the first part of article five, by striking 

out the word " majority," whenever it occurs therein, and 

inserting in the place thereof the word ' plurality.' 

[The Twenty-fourth Amendment was proposed to the people by a 
Resolve of the Fifty-ninth Legislature passed January 27, 1880, and 
having been adopted September 13, was proclaimed by Governor Davis 
to be a part of the Constitution, November 9, 1880.] 

ARTICLE XXV. 

BIENNIAL LEGISLATIVE TERMS. 

Section two, article four, part first, of the Constitution 
of this State, as amended under the " resolution concern- 
ing an amendment of the Constitution of Maine," ap- 
proved the fourth day of March, in the year eighteen 
hundred and seventy-nine, shall be further amended by 
striking out the words " first Wednesday in January next 
succeeding their election," and inserting in place thereof 
the words ' day next preceding the biennial meeting of 
the Legislature, and the amendment herein proposed, if 
adopted, shall determine the term of office of senators 
and representatives to be elected at the annual meeting in 
September, in the year eighteen hundred and eighty, as 
well as the term of senators and representatives thereafter 
to be elected," so that said section, as amended, shall 
read as follows : 



THE CONSTITUTION OF MAINE. 549 

'SEC. 2. The House of Representatives shall consist 
of one hundred and fifty-one members, to be elected by 
the qualified electors, and hold their office two years from 
the day next preceding the biennial meeting of the 
Legislature, and the amendment herein proposed, if adopted, 
shall determine the term of office of senators and represen- 
tatives to be elected at the annual meeting in September, in 
the year eighteen hundred and eighty, as well as the term 
of senators and representatives thereafter to be elected. 
The Legislature, which shall first be convened under this 
Constitution, shall on or before the fifteenth day of August, 
in the year of our Lord one thousand eight hundred and 
twenty-one, and the Legislature, within every subsequent 
period of at most ten years, and at least five, cause the 
number of the inhabitants of the State to be ascertained, 
exclusive of foreigners not naturalized and Indians not 
taxed. The number of representatives shall, at the sev- 
eral periods of making such enumeration, be fixed and 
apportioned among the several counties, as near as may 
be, according to the number of inhabitants, having regard 
to the relative increase of population. The number of 
representatives shall, on said first apportionment \ be not 
less than one hundred and not more than one hundred and 

fifty-' 

[The Twenty-fifth Amendment was proposed to the people by a 
Resolve of the Fifty-ninth Legislature passed March 18, 1880, and was 
adopted September 13, as appears from the transactions of the Gover- 
nor and Council, preserved in the office of the Secretary of State, 
wherein it is recorded that the report of the committee on elections to 
that effect was accepted by the Council and approved by the Governor, 
October 20, 1880. The amendment was never proclaimed by the Gov- 
ernor nor declared by the Legislature, and it is not known that any 
public evidence of its adoption is in existence.] 

The frequent references to Amendments XXIII., XXIV., 
and XXV. in connection with those sections of the Con- 
stitution modified by them render further explanation of 
them unnecessary here. 



5 SO OUR SYSTEM OF GOVERNMENT. 

ARTICLE XXVI. 

PROHIBITION OF THE MANUFACTURE AND SALE OF 
INTOXICATING LIQUORS. 

The manufacture of intoxicating liquors, not including 
cider, and the sale and keeping for sale of intoxicating 
liquors, are and shall be forever prohibited. 

Except, however, that the sale and keeping for sale of 
such liquors for medicinal and mechanical purposes and 
the arts, and the sale and keeping for sale of cider, may 
be permitted under such regulations as the Legislature 
may provide. 

The Legislature shall enact laws with suitable penalties 
for the suppression of the manufacture, sale and keeping 
for sale of intoxicating liquors, with the exceptions herein 
specified. 

[The Twenty-sixth Amendment was proposed to the people by a 
Resolve of the Sixty-first Legislature, approved February 21, 1883, 
adopted September 10, proclaimed by Governor Robie December 3, 
1884, and took effect on the first Wednesday of January, 1885.] 

This amendment embodies in the Constitution the 
policy of the State in regard to the manufacture and sale 
of intoxicating liquors within its limits. 

AMENDMENT XXVIII. 

APPOINTMENT OF ADJUTANT GENERAL. 
[See page 532.] 

AMENDMENT XXIX. 

EDUCATIONAL QUALIFICATION OF VOTERS. 
[See page 478.] 



THE CONSTITUTION OF MAINE. 55 I 

ADDENDUM. 

The dates of the organization of the different counties of Maine are 
as follows : — 

York, 1640; Cumberland, 1760; Lincoln, 1760; Hancock, 1790 
Washington, 1790; Kennebec, 1799; Oxford, 1805; Somerset, 1809 
Penobscot, 1816; Waldo, 1827; Franklin, 1838; Piscataquis, 1838 
Aroostook, 1839; Androscoggin, 1854; Sagadahoc, 1854; Knox, 186c 



ERRATA. 

*In the line before the last on page 56, for 1690, read 1691. 

2 In the last line on page 68, for 1797 read 1697. 

3 Read into the text on page 152, — Congress by acts passed in 1872 
and 1875 provided that representatives should be elected on the Tues- 
day after the first Monday in November throughout the United States, 
except in those States whose constitutions prescribe a different day. 

"Page 528 : The salary of the Justices of the Supreme Judicial Court 
of Maine was increased to $3,500 in 1887. 



APPENDIX. 



MAGNA CHART A 

OR 

The Great Charter of King John, Granted 
June 15, A. D. 1215. 

John, by the Grace of God, King of England, Lord of Ireland, 
Duke of Normandy, Aquitaine, and Count of Anjou, to his Arch- 
bishops, Bishops, Abbots, Earls, Barons, Justiciaries, Foresters, 
Sheriffs, Governors, Officers, and to all Bailiffs, and his faithful sub- 
jects, greeting. Know ye, that we, in the presence of God, and for 
the salvation of our soul, and the souls of all our ancestors and heirs, 
and unto the honour of God and the advancement of Holy Church, 
and amendment of our Realm, by advice of our venerable Fathers, 
Stephen, Archbishop of Canterbury, Primate of all England and 
Cardinal of the Holy Roman Church; Henry, Archbishop of Dublin ; 
William, of London; Peter, of Winchester; Jocelin, of Bath and 
Glastonbury; Hugh, of Lincoln ; Walter of Worcester; William, of 
Coventry; Benedict, of Rochester — Bishops: of Master Pandulph, 
Sub-Deacon and Familiar of our Lord the Pope; Brother Aymeric, 
Master of the Knights-Templars in England; and of the noble Per- 
sons, William Marescall, Earl of Pembroke; William, Earl of Salis- 
bury; William, Earl of Warren; William, Earl of Arundel; Alan de 
Galloway, Constable of Scotland; Warin FitzGerald, Peter FitzHer- 
bert, and Hubert de Burgh, Seneschal of Poitou : Hugh de Neville, 
Matthew FitzHerbert, Thomas Basset, Alan Basset, Philip of Albi- 
ney, Robert de Roppeli, John Mareschal, John FitzHugh, and others, 
our liegemen, have, in the first place, granted to God, and by this our 
present Charter confirmed, for us and our heirs for ever : — 

1. That the Church of England shall be free, and have her whole 
rights, and her liberties inviolable ; and we will have them so observed, 
that it may appear thence that the freedom of elections, which is 
reckoned chief and indispensable to the English Church, and which 
we granted and confirmed by our Charter, and obtained the confirma- 
tion of the same from our Lord the Pope Innocent III., before the 
discord between us and our barons, was granted of mere free will ; 
which Charter we shall observe, and we do will it to be faithfully 
observed by our heirs for ever. 

2. We also have granted to all the freemen of our kingdom, for us 
and for our heirs for ever, all the underwritten liberties, to be had and 

( 558 ) 



554 APPENDIX. 

holden by them and their heirs, of us and our heirs for ever : If anv 
of our earls, or barons, or others, who hold of us in chief by military 
service, shall die, and at the time of his death his heir shall be of full 
age, and owe a relief, he shall have his inheritance by the ancient 
relief — that is to say, the heir or heirs of an earl, for a whole earldom, 
by a hundred pounds; the heir or heirs of a baron, for a whole 
barony, by a hundred pounds ; the heir or heirs of a knight, for a 
whole knight's fee, by a hundred shillings at most; and whoever 
oweth less shall give less, according to the ancient custom of fees. 

3. But if the heir of any such shall be under age, and shall be in 
ward, when he comes of age he shall have his inheritance without 
relief and without fine. 

4. The keeper of the land of such an heir being under age, shall 
take of the land of the heir none but reasonable issues, reasonable 
customs, and reasonable services, and that without destruction and 
waste of his men and his goods ; and if we commit the custody of any 
such lands to the sheriff, or any other who is answerable to us for the 
issues of the land, and he shall make destruction and waste of the 
lands which he hath in custody, we will take of him amends, and the 
land shall be committed to two lawful and discreet men of that fee, 
who shall answer for the issues to us, or to him to whom we shall 
assign them ; and if we sell or give to any one the custody of any 
such lands, and he therein make destruction or waste, he shall lose the 
same custody, which shall be committed to two lawful and discreet 
men of that fee, who shall in like manner answer to us as aforesaid. 

5. But the keeper, so long as he shall have the custody of the 
land, shall keep up the houses, parks, warrens, ponds, mills, and 
other things pertaining to the land, out of the issues of the same 
land; and shall deliver to the heir, when he comes of full age, his 
whole land, stocked with ploughs and carriages, according as the time 
of wainage s,hall require, and the issues of the land can reasonably 
bear. 

6. Heirs shall be married without disparagement, and so that 
before matrimony shall be contracted, those who are near in blood to 
the heir shall have notice. 

7. A widow, after the death of her husband, shall forthwith and 
without difficulty have her marriage and inheritance ; nor shall she 
give anything for her dower, or her marriage, or her inheritance, 
which her husband and she held at the day of his death ; and she may 
remain in the mansion house of her husband forty days after his death, 
within which time her dower shall be assigned. 

8. No widow shall be distrained to marry herself, so long as she 
has a mind to live without a husband ; but yet she shall give security 
that she will not marry without our assent, if she hold of us ; or with- 
out the consent of the lord of whom she holds, if she hold of another. 

9. Neither we nor our bailiffs shall seize any land or rent for any 
debt so long as the chattels of the debtor are sufficient to pay the debt; 
nor shall the sureties of the debtor be distrained so long as the princi- 
pal debtor has sufficient to pay the debt; and if the principal debtor 
shall fail in the payment of the debt, not having wherewithal to pay it, 



MAGNA CHARTA. 555 

then the sureties shall answer the debt; and if they will they shall 
have the lands and rents of the debtor, until they shall be satisfied for 
the debt which they paid for him, unless the principal debtor can show 
himself acquitted thereof against the said sureties. 

10. If any one have borrowed anything of the Jews, more or less, 
and die before the debt be satisfied, there shall be no interest paid for 
that debt, so long as the heir is under age, of whomsoever he may 
hold; and if the debt falls into our hands, we will only take the chattel 
mentioned in the deed. 

ii. And if any one shall die indebted to the Jews, his wife shall 
have her dower and pay nothing of that debt ; and if the deceased left 
children under age, they shall have necessaries provided for them, ac- 
cording to the tenement of the deceased ; and out of the residue the 
debt shall be paid, saving, however, the service due to the. lords, and in 
like manner shall it be done touching debts due to others than the 
Jews. 

12. NO SCUTAGE OR AID SHALL BE IMPOSED IN OUR KINGDOM, 

unless by the general council of our kingdom ; except for ran- 
soming our person, making our eldest son a knight, and once for 
marrying our eldest daughter; and for these there shall be paid no 
more than a reasonable aid. In like manner it shall be concerning the 
aids of the City of London. 

13. And the City of London shall have all its ancient liberties and 
free customs, as well by land as by water : furthermore, we will and 
grant that all other cities and boroughs, and towns and ports, shall 
have all their liberties and free customs. 

14. And for holding the general council of the kingdom 
concerning the assessment of aids, except in the three cases 
aforesaid, and for the assessing of scutages, we shall cause 
to be summoned the archbishops, bishops, abbots, earls, and 
greater barons of the realm, singly by our letters. 'and 
furthermore, we shall cause to be summoned generally, by 
our sheriffs and bailiffs, all others who hold of us in chief, 
for a certain day, that is to say, forty days before their 
meeting at least, and to a certain place ; and in all letters 
of such summons we will declare the cause of such summons. 
and summons being thus made, the business shall proceed on 
the day appointed, according to the advice of such as shall 
be present, although all that were summoned come not. 

15. We will not for the future grant to any one that he may take 
aid of his own free tenants, unless to ransom his body, and to make his 
eldest son a knight, and once to marry his eldest daughter; and for 
this there shall be only paid a reasonable aid. 

16. No man shall be distrained to perform more service for a 
knight's fee, or other free tenement, than is due from thence. 

17. Common pleas shall not follow our courts, but shall be holden 
in some place certain. 

18. Trials upon the Writs of Novel Disseisin, and of Mort d'ances- 
tor, and of Darrein Presentment, shall not be taken but in their proper 
counties, and after this manner: We, or if we should be out of the 



556 



APPENDIX. 



realm, our chief justiciary, will send two justiciaries through every 
county four times a year, who, with four knights of each county, 
chosen by the county, shall hold the said assizes in the county, on the 
day, and at the place appointed. 

19. And if any matters cannot be determined on the day appointed 
for holding the assizes in each county, so many of the knights and 
freeholders as have been at the assizes aforesaid shall stay to decide 
them as is necessary, according as there is more or less business. 

20. A freeman shall not be amerced for a small offence, but only 
according to the degree of the offence ; and for a great crime accord- 
ing to the heinousness of it, saving to him his contenement; and 
after the same manner a merchant, saving to him his merchandise. 
And a villein shall be amerced after the same manner, saving to him 
his wainage, if he falls under our mercy; and none of the aforesaid 
amerciaments shall be assessed but by the oath of honest men in the 
neighbourhood. 

21. Earls and barons shall not be amerced but by their peers, and 
after the degree of the offence. 

22. No ecclesiastical person shall be amerced for his lay tenement, 
but according to the proportion of the others aforesaid, and not 
according to the value of his ecclesiastical benefice. 

23. Neither a town nor any tenant shall be distrained to make 
bridges or embankments, unless that anciently and ot right they are 
bound to do it. 

24. No sheriff, constable, coroner, or other our bailiffs, shall hold 
"Pleas of the Crown." 

25. All counties, hundreds, wapentakes, and trethings, shall stand 
at the old rents, without any increase, except in our demesne manors. 

26. If any one holding of us a lay fee die, and the sheriff, or our 
bailiffs, show our letters patent of summons for debt which the dead 
man did owe to us, it shall be lawful for the sheriff or our bailiff to 
attach and register the chattels of the dead, found upon his lay fee, to 
the amount of the debt, by the view of lawful men, so as nothing be 
removed until our whole clear debt be paid ; and the rest shall be left 
to the executors to fulfil the testament of the dead ; and if there be 
nothing due from him to us, all the chattels shall go to the use of the 
dead, saving to his wife and children their reasonable shares. 

27. If any freeman shall die intestate, his chattels shall be dis- 
tributed by the hands of his nearest relations and friends, by view of 
the Church, saving to every one his debts which the deceased owed to 
him. 

28. No constable or bailiff of ours shall take corn or other chattels 
of any man unless he presently give him money for it, or hath respite 
of payment by the good-will of the seller. 

29. No constable shall distrain any knight to give money for castle- 
guard, if he himself will do it in his person, or by another able man, 
in case he cannot do it through any reasonable cause. And if we 
have carried or sent him into the army, he shall be free from such 
guard for the time he shall be in the army by our command. 

30. No sheriff or bailiff of ours, or any other, shall take horses or 



MAGNA CHARTA. 5 57 

carts of any freeman for carriage, without the assent of the said 
freeman. 

31. Neither shall we nor our bailiffs take any man's timber for our 
castles or other uses, unless by the consent of the owner of the 
timber. 

32. We will retain the lands of those convicted of felony only one 
year and a day, and then they shall be delivered to the lord of the fee. 

33. All kydells (weirs) for the time to come shall be put down in 
the rivers of Thames and Medway, and throughout all England, 
except upon the sea-coast. 

34. The writ which is called praecipe, for the future, shall not be 
made out to any one, of any tenement, whereby a freeman may lose 
his court. 

35. There shall be one measure of wine and one of ale through our 
whole realm ; and one measure of corn, that is^ to say, the London 
quarter; and one breadth of dyed cloth, and russets, and haberjeets, 
that is to say, two ells within the lists ; and it shall be of weights as it 
is of measures. 

36. Nothing from henceforth shall be given or taken 
for a writ of inquisition of life or limb, but it shall be 
granted freely, a^nd not denied. 

37. If any do hold of us by fee-farm, or bj' socage, or by burgage 
and he hold also lands of any other by knight's service, we will not 
have the custody of the heir or land, which is holden of another man's 
fee by reason of that fee-farm, socage, or burgage; neither will we 
have the custody of the fee-farm, or socage, or burgage, unless knight's 
service was due to us out of the same fee-farm. We will not have the 
custody of an heir, nor of any land which he holds of another by 
knight's service, by reason of any petty serjeanty by which he holds of 
us, by the service of paying a knife, an arrow, or the like. 

38. No bailiff from henceforth shall put any man to his law upon 
his own bare saying, without credible witnesses to prove it. 

39. No FREEMAN SHALL BE TAKEN OR IMPRISONED, OR DISSEISED, 
OR OUTLAWED, OR BANISHED, OR ANY WAYS DESTROYED, NOR WILL 
WE PASS UPON HIM, NOR WILL WE SEND UPON HIM, UNLESS BY THE 
LAWFUL JUDGMENT OF HIS PEERS, OR BY THE LAW OF THE LAND. 

40. We will SELL TO no MAN, WE will NOT deny to any MAN, 
EITHER JUSTICE OR RIGHT. 

41. All merchants shall have safe and secure conduct, to go out of, 
and to come into England, and to stay there and to pass as well by 
land as by water, for buying and selling by the ancient and allowed 
customs, without any unjust tolls; except in time of war, or when they 
are of any nation at war with us. And if there be found any such in 
our land, in the beginning of the war, they shall be attached, without 
damage to their bodies or goods, until it be known unto us, or our 
chief justiciary, how our merchants be treated in the nation at war 
with us; and if ours be safe there, the others shall be safe in our 
dominions. 

42. It shall be lawful, for the time to come, for any one to go out oi~ 
our kingdom, and return safelvand securelv bv land or bv water, saving 



558 APPENDIX. 

his allegiance to us ; unless in time of war, by some short space, for 
the common benefit of the realm, except prisoners and outlaws, accord- 
ing to the law of the land, and people in war with us, and merchants 
who shall be treated as is above mentioned. 

43. If any man hold of any escheat, as of the honour of Wallingford, 
Nottingham, Boulogne, Lancaster, or of other escheats which be in 
our hands, and are baronies, and die, his heir shall give no other relief, 
and perform no other service to us than he would to the baron, if it 
were in the baron's hand; and we will hold it after the same manner 
as the baron held it. 

44. Those men who dwell without the forest from henceforth shall 
not come before our justiciaries of the forest, upon common summons, 
but such as are impleaded, or are sureties for any that are attached for 
something concerning the forest. 

45. We will not make any justices, constables, sheriffs, or bailiffs, 
but of such as know the law of the realm and mean duly to observe it. 

46. All barons who have founded abbeys, which they hold by 
charter from the kings of England, or by ancient tenure, shall have 
the keeping of them, when vacant, as they ought to have. 

47. All forests that have been made forests in our time shall forth- 
with be disforested; and the same shall be done^vith the water-banks 
that have been fenced in by us in our time. 

48. All evil customs concerning forests, wan-ens, foresters, and 
warreners, sheriffs and their officers, water-banks and their keepers, 
shall forthwith be inquired into in each county, by twelve sworn 
knights of the same county, chosen by creditable persons of the same 
county; and within forty days after the said inquest be utterly abol- 
ished, so as never to be restored : so as we are first acquainted there- 
with, or our justiciary, if we should not be in England. 

49. We will immediately give up all hostages and charters delivered 
unto us by our English subjects, as securities for their keeping the 
peace, and yielding us faithful service. 

50. We will entirely remove from their bailiwicks the relations of 
Gerard de Atheyes, so that for the future they shall have no bailiwick 
in England; we will also remove Engelard de Cygony, Andrew, Peter, 
and Gyon, from the Chancery; Gyon de Cygony, Geoffrey de Martyn, 
and his brothers; Philip Mark and his brothers, and his nephew, 
Geoffrey, and their whole retinue. 

51. As soon as peace is restored, we will send out of the kingdom 
all foreign knights, cross-bowmen, and stipendiaries, who are come 
with horses and arms to the molestation of our people. 

52. If any one has been dispossessed or deprived by us, without 
the lawful judgment of his peers, of his lands, castles, liberties, or 
right, we will forthwith restore them to him ; and if any dispute arise 
upon this head, let the matter be decided by the five-and-twenty barons 
hereafter mentioned, for the preservation of the peace. And for all 
those things of which any person has, without the lawful judgment of 
his peers, been dispossessed or deprived, either by our father King 
Henry, or our brother King Richard, and which we have in our hands, 
or are possessed bv others, and we are bound to warrant and make 



MAGNA CHARTA. 559 

good, we shall have a respite till the term usually allowed the cru- 
saders ; excepting those things about which there is a plea depending, 
or whereof an inquest hath been made, by our order before we under- 
took the crusade; but as soon as we return from our expedition, or if 
perchance we tarry at home and do not make our expedition, we will 
immediately cause full justice to be administered therein. 

53. The same respite we shall have, and in the same manner, about 
administering justice, disafforesting or letting continue the forests, 
which Henry our father, and our brother Richard, have afforested ; 
and the same,, concerning the wardship of the lands which are in 
another's fee, but the wardship of which we have hitherto had, by 
reason of a fee held of us by knight's service; and for the abbeys 
founded in any other fee than our own, in which the lord of the fee 
says he has a right; and when we return from our expedition, or if we 
tarry at home, and do not make our expedition, we will immediately 
do full justice to all the complainants in this behalf. 

54. No man shall be taken or imprisoned upon the appeal of a 
woman, for the death of any other than her husband. 

55. All unjust and illegal fines made by us, and all amerciaments 
imposed unjustly and contrary to the law of the land, shall be entirely 
given up, or else be left to the decision of the five-and-twenty barons 
hereafter mentioned for the preservation of the peace, or of the 
major part of them, together with the aforesaid Stephen, Archbishop 
of Canterbury, if he can be present, and others whom he shall think 
fit to invite; and if he cannot be present, the business shall notwith- 
standing go On without him ; but so that if one or more of the afore- 
said five-and-twenty barons be plaintiffs in the same cause, they shall 
be set aside as to what concerns this particular affair, and others be 
chosen in their room, out of the said five-and-twenty, and sworn by 
the rest to decide the matter. 

56. If we have disseised or dispossessed the Welsh of any lands, 
liberties, or other things, without the legal judgment of their peers, 
either in England or in Wales,*thej' shall be immediately restored to 
them ; and if any dispute arise upon this head, the matter shall be 
determined in the Marches by the judgment of their peers ; for tene- 
ments in England according to the law of England, for tenements in 
Wales according to the law of Wales, for tenements of the Marches 
according to the law of the Marches : the same shall the Welsh do to 
us and our subjects. 

57. As for all those things of which a Welshman hath, without 
the lawful judgment of his peers, been disseised or deprived of by 
King Henry our father, or our brother King Richard, and which we 
either have in our hands or others are possessed of, and we aie obliged 
to warrant it, we shall have a respite till the time generally allowed 
the crusaders ; excepting those things about which a suit is depending, 
or whereof an inquest has been made by our order, before we under- 
took the crusade : but when we return, or if we stay at home without 
performing our expedition, we will immediately do them full justice, 
according to the laws of the Welsh and of the parts before mentioned. 

t;8. We will without delav dismiss the son of Llewellin, and all the 



560 APPENDIX. 

Welsh hostages, and release them from the engagements they have 
entered into with us for the preservation of the peace. 

59. We will treat with Alexander, King of Scots, concerning the 
restoring his sisters and hostages, and his right and liberties, in the 
same form and manner as we shall do to the rest of our barons of 
England ; unless by the charters which we have from his father, Wil- 
liam, late King of Scots, it ought to be otherwise ; and this shall be 
left to the determination of his peers in our court. 

60. All the aforesaid customs and liberties, which Ave have granted 
to be holden in our kingdom, as much as it belongs to us, all people of 
our kingdom, as well clergy as laity, shall observe, as far as they are 
concerned, towards their dependents. 

61. And whereas, for the honour of God and the amendment of our 
kingdom, and for the better quieting the discord that has arisen be- 
tween us and our barons, we have granted all these things aforesaid ; 
willing to render them firm and lasting, we do give and grant our sub- 
jects the underwritten security; namely, that the barons may choose 
"five-and-twenty barons of the kingdom whom they think convenient, 
who shall take care, with all their might, to hold and observe, and 
cause to be observed, the peace and liberties we have granted them, 
and by this our present Charter confirmed in this manner; that is to 
say, that if we, our justiciary, our bailiffs, or any of our officers, shall 
in any circumstance have failed in the performance of them towards 
any person, or shall have broken through any of these articles of peace 
and security, and the offence be notified to four barons chosen out of 
the five-and-twenty before mentioned, the said four barons* shall repair 
to us, or aur justiciary, if we are out of the realm, and, laying open the 
grievance, shall petition to have it redressed without delay : and if it be 
not redressed by us, or if we should chance to be out of the realm, if it 
should not be redressed by our justiciary within forty days, reckoning 
from the time it has been notified to us, or to our justiciary (if we 
should be out of the realm), the four barons aforesaid shall lay the 
cause before the rest of the five-and-twenty barons ; and the said five- 
and-twenty barons, together with the community of the whole king- 
dom, shall distrain and distress us in all the ways in which they shall 
be able, by seizing our castles, lands, possessions, and in any other 
manner they can, till the grievance is redressed, according to their 
pleasure; saving harmless oar own person, and the persons of our 
Queen and children ; and when if is redressed, they shall behave to us 
as before. And any person whatsoever in the kingdom may swear 
that he will obey the orders of the five-and-twenty barons aforesaid in 
the execution of the premises, and will distress us, jointly with them, 
to the utmost of his power ; and we give public and free liberty to any 
one that shall please to swear to this, and never will hinder any person 
from taking the same oath. 

62. As for all those of our subjects who will not, of their own 
accord, swear to join the five-and-twenty barons in distraining and dis- 
tressing us, we will issue orders to make them take the same oath as 
aforesaid. And if any one of the five-and-twenty barons dies, or goes 
out of the kingdom, or is hindered anv other way from carrying the 



BILL OF RIGHTS. 56 1 

things aforesaid into execution, the rest of the said five-and-twenty 
barons may choose another in his room, at their discretion, who shall 
be sworn in like manner as the rest. In all things that are committed 
to the execution of these five-and-twenty barons, if, when they are all 
assembled together, they should happen to disagree about any matter, 
and some of them, when summoned, will not or cannot come, whatever 
is agreed upon, or enjoined, by the major part of those that are present 
shall be reputed as firm and valid as if all the five-and-twenty had given 
their consent ; and the aforesaid five-and-twenty shall swear that all 
the premises they shall faithfully observe, and cause with all their 
power to be observed. And we will procure nothing from any one, by 
ourselves nor by another, whereby any of these concessions and liber- 
ties may be revoked or lessened ; and if any such thing shall have been 
obtained, let it be null and void ; neither will we ever make use of it 
either by ourselves or any other. And all the ill-will, indignations, 
and rancours that have arisen between us and our subjects, of the 
clergy and laity, from the first breaking out of the dissensions between 
us, we do fully remit and forgive; moreover, all trespasses occasioned 
by the said dissensions, from Easter in the sixteenth year of our reign 
till the restoration of peace and tranquility, we hereby entirely remit 
to all, both clergy and laity, and as far as in us lies do fully forgive. 
We have, moreover, caused to be made for them the letters patent 
testimonial of Stephen, Lord Archbishop of Canterbury, Henry, Lord 
Archbishop of Dublin, and the bishops aforesaid, as also of Master 
Pandulph, for the security and concessions aforesaid. 

63. Wherefore we will and firmly enjoin, that the Church of Eng- 
land be free, and that all men in our kingdom have and hold all the 
aforesaid liberties, rights, and concessions, truly and peaceably, freely 
and quietly, fully and wholly to themselves and their heirs, of us and 
our heirs, in all things and places, for ever as is aforesaid. It is also 
sworn, as well on our parts as on the parts of the barons, that all the 
things aforesaid shall be observed in good faith, and without evil 
subtility. Given under our hand, in the presence of the witnesses 
above named, and many others, in the meadow called Runingmede, 
between Windsor and Staines, the 15th day of June, in the 17th year 
of our reign. 



FIRST AND ELEVENTH SECTIONS OF THE BILL OF 
RIGHTS. 1 

AN ACT FOR DECLARING THE RIGHTS AND LIBERTIES OF THE SUB- 
JECT, AND SETTLING THE SUCCESSION OF THE CROWN. 
1689. 

Whereas the Lords Spiritual and Temporal, and Commons, assem- 
bled at Westminster, lawfully, fully, and freely representing all the 
estates of the people of this realm, did upon the Thirteenth day of 



1 The other sections are, in the main, provisions in regard to the succession to the throne ; 
hence, not of interest in the present connection. 

36 



562 APPENDIX. 

February, in the year of our Lord One Thousand Six Hundred 
Eighty-eight [o. s.], present unto their Majesties, then called and 
known by the names and style of William and Mary, Prince and 
Princess of Orange, being present in their proper persons, a certain 
Declaration in writing, made by the said Lords and Commons, in the 
words following, viz. : — 

Whereas the late King James II., by the assistance of divers evil 
counsellors, judges, and ministers employed by him, did endeavour to 
subvert and extirpate the Protestant religion, and the laws and 
liberties of this kingdom : — 

1. By assuming and exercising a power of dispensing with and 
suspending of laws, and the execution of laws, without consent of 
Parliament. 

2. By committing and prosecuting divers worthy prelates for 
humbly petitioning to be excused from concurring to the said assumed 
power. 

3. By issuing and causing to be executed a commission under the 
Great Seal for erecting a court, called the Court of Commissioners 
for Ecclesiastical Causes. 

4. By levying money for and to the use of the Crown by pretence 
of prerogative, for other time and in other manner than the same was 
granted by Parliament. 

5. By raising and keeping a standing army within this kingdom in 
time of peace, without consent of Parliament, and quartering soldiers 
contrary to law. 

6. By causing several good subjects, being Protestants, to be dis- 
armed, at the same time when Papists were both armed and employed 
contrary to law. 

7. By violating the freedom of election of members to serve in 
Parliament. 

8. By prosecutions in the Court of King's Bench for matters and 
causes cognisable only in Parliament, and by divers other arbitrary 
and illegal causes. 

9. And whereas of late years, partial, corrupt, and unqualified per- 
sons have been returned, and served on juries in trials, and par- 
ticularly divers jurors in trials for high treason, which were not 
freeholders 

10. And excessive bail hath been required of persons committed in 
criminal cases, to elude the benefit of the laws made for the liberty of 
the subjects. 

11. And excessive fines have been imposed ; and illegal and cruel 
punishments inflicted. 

12. And several grants and promises made of fines and forfeitures 
before any conviction or judgment against the persons upon whom 
the same were to be levied. 

All which are utterly and directly contrary to the known laws and 
statutes, and freedom of this realm. 

And whereas the said late King James II., having abdicated the 
government, and the throne being thereby vacant, his Highness the 
Prince of Orange (whom it hath pleased Almighty God to make the 



BILL OF RIGHTS. 563 

glorious instrument of delivering this kingdom from Popery and 
arbitrary power) did (by the advice of the Lords Spiritual and Tem- 
poral, and divers principal persons of the Commons) cause letters to 
be written to the Lords Spiritual and Temporal, being Protestants, 
and other letters to the several counties, cities, universities, boroughs, 
and cinque ports, for the choosing of such persons to represent them 
as were of right to be sent to Parliament, to meet and sit at West- 
minster upon the two-and-twentieth day of January, in this year One 
Thousand Six Hundred Eight}' and Eight, in order to such an estab- 
lishment, as that their religion, laws, and liberties might not again be 
in danger of being subverted ; upon which letters elections have been 
accordingly made. 

And thereupon the said Lords Spiritual and Temporal, and Com- 
mons, pursuant to their respective letters and elections, being now 
assembled in a full and free representation of this nation, taking into 
their most serious consideration the best means for attaining the ends 
aforesaid, do in the first place (as their ancestors in like case have 
usually done) for the vindicating and asserting their ancient rights 
and liberties, declare : — 

1. That the pretended power of suspending of laws, or the execution 
of laws, by regal authority, without consent of Parliament, is illegal. 

2. That the pretended power of dispensing with laws, or the execu- 
tion of laws by regal authority, as it hath been assumed and exercised 
of late, is illegal. 

3. That the commission for erecting the late Court of Commission- 
ers for Ecclesiastical Causes, and all other commissioners and courts 
of like nature, are illegal and pernicious. 

4. That levying money for or to the use of the Crown by pretence 
and prerogative, without grant of Parliament, for longer time or in 
other manner than the same is or shall be granted, is illegal. 

5. That it is the right of the subjects to petition the King, and all 
commitments and prosecutions for such petitioning are illegal. 

6. That the raising or keeping a standing army within the kingdom 
in time of peace, unless it be with the consent of Parliament is against 
law. 

7. That the subjects which are Protestants may have arms for their 
defence suitable to their conditions, and as allowed by law. 

8. That election of members of Parliament ought to be free. 

9. That the freedom of speech, and debates or proceedings in Par- 
liament, ought not to be impeached or questioned in any court or place 
out of Parliament. 

10. That excessive bail ought not to be required, nor excessive fines 
imposed; nor cruel and unusual punishments inflicted. 

11. That jurors ought to be duly impanelled and returned, and 
jurors which pass upon men in trials for high treason ought to be 
freeholders. 

12. That all grants and promises of fines and forfeitures of particu- 
lar persons before conviction are illegal and void. 

13. And that for redress of all grievances, and for the amending, 
strengthening, and preserving of the laws, Parliament ought to be 
held frequently- 



564 APPENDIX. 

And they do claim, demand, and insist upon all and singular the 
premises, as their undoubted rights and liberties; and that no declara- 
tions, judgments, doings or proceedings, to the prejudice of the people 
in any of the said premises, ought in any wise to be drawn hereafter 
into consequence or example. 

To which demand of their rights they are particularly encouraged 
by the declaration of his Highness the Prince of Orange, as being 
the only means forjobtaining a full redress and remedy therein. 

Having therefore an entire confidence that his said Highness the 
Prince of Orange will perfect the deliverance so far advanced by him, 
and will still preserve them from the violation of their rights, which 
they have here asserted, and from all other attempts upon their relig- 
ion, rights, and liberties. 

XI. All which their Majesties are contented and pleased shall be 
declared, enacted, and established by authority of this present Parlia- 
ment, and shall stand, remain, and be the law of this realm for ever; 
and the same are by their said Majesties, by and with the advice and 
consent of the Lords Spiritual and Temporal, and Commons, in Par- 
liament assembled, and by the authority of the same, declared, enacted, 
or established accordinsrlv. 



THE DECLARATION OF INDEPENDENCE. 

IN CONGRESS, JULY 4, 1776. 

THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES 

OF AMERICA. 

When, in the course of human events, it becomes necessary for one 
people to dissolve the political bands which have connected them with 
another, and to assume, among the powers of the earth, the separate 
and equal station to which the laws of nature and of nature's God 
entitle them, a decent respect to the opinions of mankind requires that 
they should declare the causes which impel them to the separation. 

We hold these truths to be self-evident : that all men are created 
equal ; that they are endowed by their Creator with certain unalien- 
able rights ; that among these are life, liberty, and the pursuit of hap- 
piness ; that, to secure these rights, governments are instituted among 
men, deriving their just powers from the consent of the governed ; 
that, whenever any form of government becomes destructive of these 
ends, it is the right of the people to alter or to abolish it, and to insti- 
tute a new government, laying its foundation on such principles, and 
organizing its powers in such form, as to them shall seem most likely 
to effect their safety and happiness. Prudence, indeed, will dictate, 
that governments long established, should not be changed for light 
and transient causes ; and, accordingly, all experience hath shown 
that mankind are more disposed to suffer, while evils are sufferable, 
than to right themselves by abolishing the forms to which they are 
accustomed. But when a long train of abuses and usurpations, pur- 



DECLARATION OF INDEPENDENCE. 565 

suing invariably the same object, evinces a design to reduce them 
under absolute despotism, it is their right, it is their duty, to-throw 
off such a government, and to provide new guards for their future 
security. Such has been the patient sufferance of these colonies, and 
such is now the necessity which constrains them to alter their former 
systems of government. The history of the present King of Great 
Britain is a history of repeated injuries and usurpations, all having in 
direct object the establishment of an absolute tyi-anny over these 
States. To prove this, let facts be submitted to a candid world. 

He has refused his assent to laws the most wholesome and necessary 
for the public good. 

He has forbidden his governors to pass laws of immediate and 
pi-essing importance, unless suspended in their operations till his 
assent should be obtained; and when so suspended, he has utterly 
neglected to attend to them. 

He has refused to pass other laws for the accommodation of large 
districts of people, unless those people would relinquish the right of 
representation in the legislature — a right inestimable to them, and 
formidable to tyrants only. 

He has called together legislative bodies at places unusual, uncom- 
fortable, and distant from the depository of their public records, for 
the sole purpose of fatiguing them into compliance with his measures. 

He has dissolved representative houses repeatedly, for opposing, 
with manly firmness, his invasions on the rights of the people. 

He has refused, for a long time after such dissolutions, to cause 
others to be elected, whereby the legislative powers, incapable of 
annihilation, have returned to the people at large for their exercise; 
the state remaining, in the meantime, exposed to all the dangers of 
invasions from without, and convulsions within. 

He has endeavored to prevent the population of these States ; for 
that purpose obstructing the laws for the naturalization of foreigners; 
refusing to pass others to encourage their migrations hither, and rais- 
ing the conditions of new appropriations of lands. 

He has obstructed the administration of justice by refusing his 
assent to laws for establishing judiciary powers. 

He has made judges dependent on his will alone for the tenure of 
their offices, and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither swarms 
of officers to harass our people and eat out their substance. 

He has kept among us, in times of peace, standing armies, without 
the consent of our legislatures. 

He has affected to render the military independent of, and superior 
to, the civil power. 

He has combined with others to subject us to a jurisdiction foreign 
to our constitution, and unacknowledged by our laws; giving his 
assent to their acts of pretended legislation : 

For quartering large bodies of armed troops among us ; 

For protecting them, by a mock trial, from punishment for" any 
murders which they should commit on the inhabitants of these States; 

For cutting off our trade with all parts of the world ; 



566 APPENDIX. 

For imposing taxes on us without our consent; 

For depriving us, in many cases, of the benefits of trial by jury; 

For transporting us beyond seas to be tried for pretended offenses : 

For abolishing the free system of English laws in a neighboring- 
province, establishing therein an arbitrary government, and enlarging 
its boundaries, so as to render it at once an example and fit instru- 
ment for introducing the same absolute rule into these colonies ; 

For taking away our charters, abolishing our most valuable laws, 
and altering, fundamentally, the forms of our governments ; 

For suspending our own legislatures, and declaring themselves 
invested with power to legislate for us in all cases whatsoever. 

He has abdicated government here by declaring us out of his pro- 
tection, and waging war against us. 

He has plundered our seas, ravaged our coasts, burned our towns, 
and destroyed the lives of our people. 

He is at this time transporting large armies of foreign mercenaries 
to complete the works of death, desolation, and tyranny, already 
begun with circumstances of cruelty and perfidy, scarcely paralleled in 
the most barbarous ages, and totally unworthy the head of a civilized 
nation. 

He has constrained our fellow-citizens, taken captive on the high 
seas, to bear arms against their country, to become the executioners 
of their friends and brethren, or to fall themselves bv their hands. 

He has excited domestic insurrection among us, and has endeavored 
to bring on the inhabitants of our frontiers the merciless Indian 
savages, whose known rule of warfare is an undistinguished destruc- 
tion of all ages, sexes, and conditions. 

In every stage of these oppressions we have petitioned for redress 
in the most humble terms ; our repeated petitions have been answered 
only by repeated injury. A prince whose character is thus marked by 
every act which may define a tyrant, is unfit to be the ruler of a free 
people. 

Nor have we been wanting in attentions to our British brethren. 
We have warned them, from time to time, of attempts by their legis- 
latm-e to extend an unwarrantable jurisdiction over us. We have 
reminded them of the circumstances of our emigration and settlement 
here. We have appealed to their native justice and magnanimity, 
and we have conjured them, by the ties of our common kindred, to 
disavow these usurpations, which would inevitably interrupt our con- 
nections and correspondence. They, too, have been deaf to the voice 
of justice and of consanguinity. We must, therefore, acquiesce in the 
necessity which denounces our separation, and hold them, as we hold 
the rest of mankind — enemies in war; in peace, friends. 

We, therefore, the representatives of the United States of 
America, in General Congress assembled, appealing to the Supreme 
Judge of the world for the rectitude of our intentions, do, in the name 
and by the authority of the good people of these colonies, solemnly 
publish and declare, That these United Colonies are, and of right 
ought to be, Free and Independent States; that they are absolved 
from all allegiance to the British crown, and that all political connec- 



ARTICLES OF CONFEDERATION. 567 

tion between them and the state of Great Britain is, and ought to be, 
totally dissolved; and that, as Free and Independent States, they have 
full power to levy war, conclude peace, contract alliances, establish 
commerce, and to do all other acts and things which Independent 
States may of right do. And for the support of this Declaration, 
with a firm reliance on the protection of Divine Providence, we 
mutually pledge to each other our lives, our fortunes, and our sacred 
honor. 



ARTICLES OF CONFEDERATION. 

ARTICLES OF CONFEDERATION AND PERPETUAL UNION BETWEEN THE 
STATES OF NEW HAMPSHIRE, MASSACHUSETTS BAY, RHODE ISLAND 
AND PROVIDENCE PLANTATIONS, CONNECTICUT, NEW YORK, NEW 
JERSEY, PENNSYLVANIA, DELAWARE, MARYLAND, VIRGINIA, NORTH 
CAROLINA, SOUTH CAROLINA, AND GEORGIA. 

Article I. — The stile of this confederacy shall be "The United 
States of America." 

Art. II. — Each State retains its sovereignty, freedom, and independ- 
ence, and every Power, Jurisdiction, and right, which is not by this 
confederation expressly delegated to the united states in congress 
assembled. 

Art. III. The said states hereby severally enter into a firm league 
of friendship with each other, for their common detense, the security 
of their Liberties, and their mutual and general welfare, binding them- 
selves to assist each other against all force offered to, or attacks made 
upon them, or any of them, on account of religion, sovereignty, trade, 
or any other pretense whatever. 

Art. IV. — The better to secure and perpetuate mutual friendship 
and intercourse among the people of the different states in this union, 
the free inhabitants of each of these states, paupers, vagabonds, and 
fugitives from Justice excepted, shall be entitled to all privileges and 
immunities of free citizens in the several states ; and the people of each 
state shall have ingress and regress to and from any other State, and 
shall enjoy therein all the privileges of trade and commerce, subject to 
the same duties, impositions, and restrictions, as the inhabitants thereof 
respectively; provided that such restrictions shall not extend so far as 
to prevent the removal of property imported into any state, to any 
other state, of which the Owner is an inhabitant; provided also, that 
no imposition, duties, or restriction, shall be laid by any State on the 
property of the united states, or either of them. 

If any person guilty of, or charged with, treason, felony, or other 
high misdemeanor in any state, shall flee from Justice, and be found 
in any of the united states, he shall, upon demand of the Governor 
or executive power of the state from which he fled, be delivered up. 
and removed to the state having jurisdiction of his offense. 

Full faith and credit shall be given, in each of these states, to the 
records, acts, and judicial proceedings of the courts and magistrates of 
every other State. 



568 APPENDIX. 

Art. V. — For the more convenient management of the general 
interests of the united states, delegates shall be annually appointed in 
such manner as the legislature of each state shall direct, to meet in 
congress on the first Monday in November, in every year, with a 
power reserved to each state to recall its delegates, or any of them, at 
any time within the year, and to send others in their stead, for the 
remainder of the Year. 

No slate shall be represented in congress by less than two, nor by 
more than seven members; and no person shall be capable of being a 
delegate for more than three years, in any term of six years; nor shall 
any person, being a delegate, be capable of holding any office under 
the united states, for which he, or another for his benefit, receives 
any salary, fees, or emolument of any kind. 

Each state shall maintain its own delegates in an}' meeting of the 
States, and while they act as members of the committee of the States. 

In determining questions in the united states in congress assem- 
bled, each State shall have one vote. 

Freedom of speech and debate in congress shall not be impeached 
or questioned in any Court or place out of congress ; and the members 
of congress shall be protected in their persons from arrests and im- 
prisonments during the time of their going to and from, and attend- 
ance on, congress, except for treason, felony or breach of the peace. 

Art. VI. — No state, without the Consent of the united states, in 
congress assembled, shall send any embassy to, or receive any em- 
bassy from, or enter into any conference, agreement, alliance, or 
treaty, with any King, prince or state; nor shall any person holding 
any office of profit or trust under the united states, or any of them, 
accept of any present, emolument, office, or title of any kind whatever, 
from any king, prince, or foreign state; nor shall the united states, in 
congress assembled, or any of them, grant any title of nobility. 

No two or more states shall enter into any treaty, confederation, or 
alliance whatever, between them, without the consent of the united 
states, in congress assembled, specifying accurately the purposes for 
which the same is to be entered into, and how long it shall continue. 

No state shall lay any imposts or duties which may interfere with 
any stipulations in treaties, entered into by the united states, in con- 
gress assembled, with any king, prince, or state, in pursuance of any 
treaties already proposed by congress to the courts of France and 
Spain. 

No vessels of war shall be kept up in time of peace, by any state, 
except such number only as shall be deemed necessary, by the united 
states, in congress assembled, for the defense of such state or its 
trade; nor shall any body of forces be kept up, by any state, in time of 
peace, except such number onlj' as, in the judgment of the united 
states, in congress assembled, shall be deemed requisite to garrison 
the forts necessary for the defense of such state ; but every state shall 
always keep up a well-regulated and disciplined militia, sufficiently 
armed and accoutered, and shall provide and have constantly ready 
for use, in public stores, a due number of field-pieces and tents, and a 
proper quantity of arms, ammunition, and camp equipage. 



ARTICLES OF CONFEDERATION. 569 

No state shall engage in any war without the consent of the united 
states in congress assembled, unless such state be actually invaded 
by enemies, or shall have received certain advice of a resolution being 
formed by some nation of Indians to invade such state, and the danger 
is so imminent as not to admit of a delay till the united states, in 
congress assembled can be consulted ; nor shall any state grant com- 
missions to any ships or vessels of war, nor letters of marque or 
reprisal, except it be after a declaration of war by the united states, in 
congress assembled, and then only against the kingdom or state; and 
the subjects thereof, against which war has been so declared, and 
under such regulations as shall be established by the united states, in 
congress assembled, unless such state be infested by pirates, in which 
case vessels of war may be fitted out for that occasion, and kept so 
long as the danger shall continue, or until the united states, in con- 
gress assembled, shall determine otherwise. 

Art. VII. — When land forces are raised by any state, for the com- 
mon defense, all officers of, or under the rank of colonel, shall be ap- 
pointed by the legislature of each state respectively by whom such 
forces shall be raised, or in such manner as such state shall direct, 
and all vacancies shall be filled up by the state which first made the 
appointment. 

Art. VIII. — All charges of war, and all other expenses that shall be 
incurred for the common defense or general welfare, and allowed by 
the united states, in congress assembled, shall be defrayed out of a 
common treasury, which shall be supplied by the several states, in 
proportion to the value of all land within each state, granted to or 
surveyed for, any Person, as such land and the buildings and improve- 
ments thereon shall be estimated, according to such mode as the 
united states, in congress assembled, shall, from time to time, direct 
and appoint. The taxes for paying that proportion shall be laid and 
levied by the authority and direction of the' legislatures of the several 
states, within the time agreed upon by the united states, in congress 
assembled. 

Art. IX. — The united states, in congress assembled, shall have the 
sole and exclusive right and power of determining on peace and war, 
except in the cases mentioned in the sixth article; of sending and 
receiving ambassadors; entering into treaties and alliances, provided 
that no treatj' of commerce shall be made, whereby the legislative 
power of the respective states shall be restrained from imposing such 
imposts and duties on foreigners, as their own people are subjected to, 
or from prohibiting the exportation or importation of any species of 
goods or commodities whatsoever; of establishing rules for deciding, 
in all cases, what captures on land or water shall be legal, and in what 
manner prizes taken by land or naval forces in the service of the 
united states, shall be divided or appropriated; of granting letters of 
marque and reprisal in times of peace; appointing courts for the trial 
of piracies and felonies committed on the high seas; and establishing 
courts for receiving and determining finally appeals- in all cases of 
captures; provided that no member of congress shall be appointed a 
judge of any of the said courts. 



570 APPENDIX. 

The united states, in congress assembled, shall also be the last 
resort on appeal, in all disputes and differences now subsisting, or that 
hereafter may arise between two or more States concerning boundary, 
jurisdiction, or any other cause whatever; which authority shall 
always be exercised in the manner following : Whenever the legisla- 
tive or executive authority, or lawful agent of any state in controversy 
with another, shall present a petition to congress, stating the matter 
in question, and praying for a hearing, notice thereof shall be given 
by order of congress, to the legislative or executive authority of the 
other State in controversy, and a day assigned for the appearance of 
the parties by their lawful agents, who shall then be directed to appoint, 
by joint consent, commissioners or judges to constitute a court for 
hearing and determining the matter in question ; but if they can not 
agree, congress shall name three persons out of each of the united 
states, and from the list of such persons each party shall alternately 
strike out one, the petitioners beginning, until the number shall be 
reduced to thirteen ; and from that number not less than seven nor 
more than nine names, as congress shall direct, shall, in the presence 
of congress, be drawn out by lot; and the persons whose names shall 
be so drawn, or any five of them, shall be commissioners or judges, to 
hear and finally determine the controversy, so always as a major part 
of the judges, who shall hear the cause, shall agree in the determina- 
tion; and if either party shall neglect to attend at the day appointed, 
without showing reasons which congress shall judge sufficient, or 
being present, shall refuse to strike, the congress shall proceed to 
nominate three persons out of each State, and the secretary of con- 
gress shall strike in behalf of such party absent or refusing; and the 
judgment and sentence of the court, to be appointed in the manner 
before prescribed, shall be final and conclusive; and if any of the 
parties shall refuse to submit to the authority of such court, or to 
appear or defend their claim or cause, the court shall nevertheless pro- 
ceed to pronounce sentence or judgment, which shall in like manner 
be final and decisive; the judgment or sentence and other proceedings 
being in either case transmitted to congress, and lodged among the 
acts of congress for the security of the parties concerned; provided, 
that every commissioner, before he sits in judgment, shall take an 
oath, to be administered by one of the judges of the supreme or supe- 
rior court of the state where the cause shall be tried, " well and truly 
to hear and determine the matter in question, according to the best of 
his judgment, without favor, affection, or hope of reward." Provided, 
also, that no state shall be deprived of territory for the benefit of the 
united states. 

All controversies concerning the private right of soil claimed under 
different grants of two or more states, whose jurisdictions, as they 
may respect such lands, and the states which pass such grants are 
adjusted, the said grants or either of them being at the same time 
claimed to have originated antecedent to such settlement of jurisdic- 
tion, shall, on the petition of either party to the congress of the 
united states, be finally determined, as near as may be, in the same 
manner as is before prescribed for deciding disputes respecting terri- 
torial jurisdiction between different States. 



ARTICLES OF CONFEDERATION. 571 

The united states, in congress assembled, shall also have the sole 
and exclusive right and power of regulating the alloy and value of coin 
struck by their own authority, or by that of the respective states ; fix- 
ing the standard of weights and measures throughout the united 
states ; regulating the trade and managing all affairs with the Indians, 
not members of any of the states ; provided that the legislative right 
of any state, within its own limits, be not infringed or violated ; estab- 
lishing or regulating post-offices from one state to another, through- 
out all the united states, and exacting such postage on the papers 
passing through the same, as may be requisite to defray the expenses 
of the said office ; appointing all officers of the land forces in the ser- 
vice of the united states, excepting regimental officers ; appointing all 
the officers of the naval forces, and commissioning all officers whatever 
in the service of the united states ; making rules for the government 
and regulation of the said land and naval forces, and directing their 
operations. 

The united states, in congress assembled, shall have authority to 
appoint a committee, to sit in the recess of congress, to be denomi- 
nated, "A Committee of the States," and to consist of one delegate 
from each state; and to appoint such other committees and civil 
officers as may be necessary for managing the general affairs of the 
united states under their direction ; to appoint one of their number to 
preside ; provided that no person be allowed to serve in the office of 
president more than one year in any term of three years ; to ascertain 
the necessary sums of Money to be raised for the service of the united 
states, and to appropriate and apply the same for defraying the public 
expenses ; to borrow money or emit bills on the credit of the united 
states, transmitting every half year to the respective states an account 
of the sums of money so borrowed or emitted ; to build and equip a 
navy; to agree upon the number of land forces, and to make requisi- 
tions from each state for its quota, in proportion to the number of 
white inhabitants in such state, which requisition shall be binding; 
and thereupon the legislature of each state shall appoint the regi- 
mental officers, raise the men, and clothe, arm, and equip them, in a 
soldier-like manner, at the expense of the united states ; and the 
officers and men so clothed, armed, and equipped shall march to the 
place appointed, and within the time agreed on by the united states, 
in congress assembled; but if the united states in congress assembled, 
shall, on consideration of circumstances, judge proper that any state 
should not raise men, or should raise a smaller number than its quota, 
and that any other state should raise a greater number of men than 
the quota thereof, such extra number shall be raised, officered, clothed, 
armed, and equipped in the same manner as the quota of such state, 
unless the legislature of such state shall judge that such extra number 
can not be safely spared out of the same, in which case they shall raise, 
officer, clothe, arm, and equip, as many of such extra number as they 
judge can be safely spared, and the officers and men so clothed, armed, 
and equipped, shall march to the place appointed, and within the time 
agreed on by the united states, in congress assembled. 

The united states, in congress assembled, shall never engage in a 



572 APPENDIX. 

war, nor grant letters of marque and reprisal in time of peace, nor 
enter into any treaties or alliances, nor coin money, nor regulate the 
value thereof, nor ascertain the sums and expenses necessary for the 
defense and welfare of the united states, or any of them, nor emit bills, 
nor borrow money on the credit of the united states, nor appropriate 
money, nor agree upon the number ot vessels of war to be built or 
purchased, or the number of land or sea forces to be raised, nor 
appoint a commander-in-chief of the army or navy, unless nine states 
assent to the same, nor shall a question on any other point, except for 
adjourning from day to day, be determined, unless by the votes of a 
majority of the united states, in congress assembled. 

The congress of the united states shall have power to adjourn to 
any time within the year, and to any place within the united states, 
so that no period of adjournment be for a longer duration than the 
space of six months, and shall publish the Journal of their proceedings 
monthly, except such parts thereof relating to treaties, alliances, or 
military operations, as in their judgment require secrecy; and the 
yeas and nays of the delegates of each state, on any question, shall be 
entered on the Journal, when it is desired by any delegate; and the 
delegates of a state, or any of them, at his or their request, shall be 
furnished with a transcript of the said Journal, except such parts as are 
above excepted, to lay before the legislatures of the several states. 

Art. X. — The committee of the states, or any nine of them, shall 
be authorized to execute, in the recess of congress, such of the powers 
of congress as the united states, in congress assembled, by the con- 
sent of nine states, shall, from time to time, think expedient to vest 
them with ; provided that no power be delegated to the said committee, 
for the exercise of which, by the articles of confederation, the voice of 
nine states, in the congress of the united states assembled, is requisite. 

Art. XI. — Canada acceding to this confederation, and joining in the 
measures of the united states, shall be admitted into, and entitled to 
all the advantages of this union; but no other colony shall be admitted 
into the same, unless such admission be agreed to by nine states. 

Art. XII. — All bills of credit emitted, moneys borrowed, and debts 
contracted by or under the authority of congress, before the assem- 
bling of the united states, in pursuance of the present confederation, 
shall be deemed and considered as a charge against the united states, 
for payment and satisfaction whereof the said united states and the 
public faith are hereby solemnly pledged. 

Art. XIII. — Every state shall abide by the determinations of the 
united states, in Congress assembled, on all questions which by this 
confederation are submitted to them. And the Articles of this con- 
federation shall be inviolably observed by every state, and the union 
shall be perpetual; nor shall any alteration at any time hereafter be 
made in any of them, unless such alteration be agreed to in a congress 
of the united states, and be afterwards confirmed by the legislatures 
of every state. 

And whereas it hath pleased the Great Governor of the World to in- 
cline the hearts of the legislatures we respectively represent in con- 
gress, to approve of, and to authorize us to ratify the said articles of 



ORDINANCE OF 1 787. 573 

confederation and perpetual union. Know Ye, that we, the under- 
signed delegates, by virtue of the power and authority to us given for 
that purpose, do, by these presents, in the name and in behalf of our 
respective constituents, fully and entirely ratify and confirm each and 
every of the said articles of confederation and perpetual union, and 
all and singular the matters and things therein contained : And we do 
further solemnly plight and engage the faith of our respective constitu- 
ents, that they shall abide by the determinations of the united states, 
in congress assembled, on all questions ; which by the said confedera- 
tion are submitted to them. And that the articles thereof shall be in- 
violably observed by the states we respectively represent, and that the 
union shall be perpetual. 

In witness whereof, we have hereunto set our hands in Congress- 
Done at Philadelphia, in the state of Pennsylvania, the ninth Day of 
July, in the Year of our Lord, 1778, and in the third year of the 
Independence of America. 



ORDINANCE OF 1787. 

AN ORDINANCE FOR THE GOVERNMENT OF THE TERRITORY OF THE 

UNITED STATES NORTHWEST OF THE RIVER OHIO. 

[IN CONGRESS, JULY 13, 1787.] 

Be it ordained by the United States in Congress assembled, That 
the said Territory, for the purposes of temporary government, be one 
district; subject, however, to be divided into two districts, as future 
circumstances may, in the opinion of Congress, make it expedient. 

Be it ordained by the authority aforesaid, That the estates both of 
resident and non-resident proprietors in the said Territory, dying- 
intestate, shall descend to and be distributed among their children and 
the descendants of a deceased child in equal parts; the descendants of 
a deceased child or grandchild to take the share of their deceased 
parent in equal parts among them ; and where there shall be no 
children or descendants, then in equal parts to the next of kin, in 
equal degree ; and among collaterals, the children of a deceased 
brother or sister of the intestate shall have in equal parts among them 
their deceased parents' share; and there shall in no case be a dis- 
tinction between kindred of the whole and half blood; saving in all 
cases to the widow of the intestate her third part of the real estate for 
life, and one-third part of the personal estate ; and this law relative to 
descents and dower shall remain in full force until altered by the 
legislature of the district. And until the governor and judges shall 
adopt laws as hereinafter mentioned, estates in the said Territory may 
be devised or bequeathed by wills in writing, signed and sealed by 
him or her in whom the estate may be, (being of full age,) and 
attested by three witnesses; and real estate may be conveyed by lease 
and release, or bargain and sale, signed, sealed, and delivered by the 
person, being of full age, in whom the estate may be, and attested by 



574 APPENDIX. 

two witnesses, provided such wills be duly proved, and such convey- 
ances be acknowledged, or the execution thereof duly proved, and be 
recorded within one year after proper magistrates, courts, and regis- 
ters shall be appointed for that purpose ; and personal property may 
be transferred by delivery, saving, however, to the French and Cana- 
dian inhabitants, and other settlers of the Kaskaskies, Saint Vincent's, 
and the neighboring villages, who have heretofore professed them- 
selves citizens of Virginia, their laws and customs now in force among 
them relative to the descent and conveyance of property. 

Be it ordained by the authority aforesaid, That there shall be ap- 
pointed from time to time, by Congress, a governor, whose commis- 
sion shall continue in force for the term of three years, unless sooner 
revoked by Congress ; he shall reside in the district, and have a free- 
hold estate therein, in one thousand acres of land, while in the exercise 
of his office. 

There shall be appointed from time to time, by Congress, a secre- 
tary, whose commission shall continue in force for four years, unless 
sooner revoked; he shall reside in the district, and have a freehold 
estate therein, in five hundred acres of land, while in the exercise of 
his office. It shall be his duty to keep and preserve the acts and laws 
passed by the Legislature, and the public records of the district, and 
the proceedings of the governor in his executive department, and 
transmit authentic copies of such acts and proceedings every six 
months to the secretary of Congress. There shall also be appointed 
a court, to consist of three judges, anj r two of whom to form a court, 
who shall have a common-law jurisdiction, and reside in the district, 
and have each therein a freehold estate in five hundred acres of land, 
while in the exercise of their offices; and their commissions shall 
continue in force during good behavior. 

The governor and judges, or a majority of them, shall adopt and 
publish in the district such laws of the original. States, criminal and 
civil, as may be necessary and best suited to the circumstances of the 
district, and report them to Congress from time to time, which laws 
shall be in force in the district until the organization of the General 
Assembly therein, unless disapproved of by Congress ; but afterwards, 
the Legislature shall have authority to alter them as thev shall think 
fit. 

The governor, for the time being, shall be commander-in-chief of 
the militia, appoint and commission all officers in the same below the 
rank of general officers; all general officers shall be appointed and 
commissioned by Congress. 

Previous to the organization of the General Assembly, the governor 
shall appoint such magistrates and other civil officers, in each county 
or township, as he shall find necessary for the preservation of the 
peace and good order in the same. After the General Assembly shall 
be organized, the powers and duties of magistrates and other civil 
officers shall be regulated and defined by the said Assembly; but all 
magistrates and other civil officers, not herein otherwise directed, 
shall, during the continuance of this temporary government, be 
appointed by the governor. 



ORDINANCE OF 1 787. 575 

For the prevention of crimes and injuries, the laws to be adopted or 
made shall have force in all parts of the district, and for the execution 
of process, criminal and civil, the goyernor shall make proper 
divisions thereof; and he shall proceed from time to time, as circum- 
stances may require, to lay out the parts of the district in which the 
Indian titles shall have been extinguished into counties and town- 
ships, subject, however, to such alterations as may thereafter be made 
by the Legislature. 

So soon as there shall be five thousand free male inhabitants, of full 
age, in the district, upon giving proof thereof to the governor, they 
shall receive authority, with- time and place, to elect representatives 
from their counties or townships, to represent them in the General 
Assembly; provided, that for every five hundred free male inhabitants, 
there shall be one representative, and so on progressively with the 
number of free male inhabitants shall the right of representation in- 
crease, until the number of representatives shall amount to twenty- 
five, after which the number and proportion of representatives shall 
be regulated by the legislature : provided, that no person be eligible 
or qualified to act as a representative unless he shall have been a citi- 
zen of one of the United States three years, and be a resident in the 
district, or unless he shall have resided in the district three years, and 
in either case shall likewise hold in his own right, in fee-simple, two 
hundred acres of land within the same ; Provided also that a free- 
hold in fifty acres of land in the district, having been a citizen of one 
of the States, and being resident in the district, or the like freehold 
and two years' residence in the district, shall be necessary to qualify a 
man as an elector of a representative. 

The representatives thus elected shall serve for the term of two 
years, and, in case of the death of a representative, or removal from 
office, the governor shall issue a writ to the county or township for 
which he was a member to elect another in his stead, to serve for the 
residue of the term. 

The General Assembly, or Legislature, shall consist of the gover- 
nor, legislative council, and a house of representatives. The legisla- 
tive council shall consist of five members, to continue in office five 
years, unless sooner removed by Congress, any three of whom to be a 
quorum, and the members of the council shall be nominated and 
appointed in the following manner, to wit : As soon as representa- 
tives shall be elected, the governor shall appoint a time and place for 
them to meet together, and, when met, they shall nominate ten per- 
sons, residents in the district, and each possessed of a freehold in five 
hundred acres of land, and return their names to Congress ; five of 
whom Congress shall appoint and commission to serve as aforesaid ; 
and whenever a vacancy shall happen in the council, by death or 
removal from office, the house of representatives shall nominate two 
persons, qualified as aforesaid, for each vacancy, and return their 
names to Congress; one of whom Congress shall appoint and com- 
mission for the residue of the term, and every five years, four months 
at least before the expiration of the time of service of the members of 
the council, the said house shall nominate ten persons, qualified as 



5/6 APPENDIX. 

aforesaid, and return their names to Congress, five of whom Congress 
shall appoint and commission to serve as members of the council five 
years, unless sooner removed. And the governor, legislative council, 
and house of representatives, shall have authority to make laws, in all 
cases, for the good government of the district, not repugnant to the 
principles and articles in this ordinance established and declared. 
And all bills, having passed by a majority in the house, and by a 
majority in the council, shall be referred to the governor for his 
assent: but no bill or legislative act whatever, shall be of any force 
without his assent. The governor shall have power to convene, pro- 
rogue, and dissolve the General Assembly, when in his opinion it 
shall be expedient. 

The governor, judges, legislative council, secretary, and such other 
officers as Congress shall appoint in the district, shall take an oath or 
affirmation of fidelity and of office ; the governor before the president 
of Congress ; and all other officers before the governor. As soon as 
a Legislature shall be formed in the district, the council and house 
assembled, in one room, shall have authority, by joint ballot, to elect 
a delegate to Congress, who shall have a seat in Congress, with a 
right of debating, but not of voting during this temporary government. 

And for extending the fundamental principles of civil and religious 
liberty, which form the basis whereon these republics, their laws and 
constitutions, are erected; to fix and establish those principles as the 
basis of all laws, constitutions, and governments, which forever here- 
after shall be formed in the said Territory ; to provide also for the 
establishment of States, and permanent government therein, and for 
their admission to a share in the federal councils on an equal footing 
with the original States, at as early periods as may be consistent with 
the general interest : 

It is hereby ordained and declared, by the authority aforesaid, That 
the following articles shall be considered as articles of compact between 
the original States and the people and States in the said Territory, and 
forever remain unalterable, unless by common consent, to-wit : 

Art. I. — No person demeaning himself in a peaceable and orderly 
manner, shall ever be molested on account of his mode of worship or 
religious sentiments in the said Territory. 

Art. II. — The inhabitants of the said Territory shall always be 
entitled to the benefit of the writ of habeas corpus, and of trial by jury ; 
of a proportionate representation of the people in the legislature, and 
of judicial proceedings according to the course of the common law. 
All persons shall be bailable unless for capital offenses, where the 
proof shall be evident or the presumption great. All fines shall be 
moderate, and no cruel or unusual punishments shall be inflicted. No 
man shall be deprived of his liberty or property but by the judgment 
of his peers, or the law of the land ; and should the public exigencies 
make it necessary for the common preservation to take any person's 
property, or to demand his particular services, full compensation shall 
be made for the same. And in the just preservation of rights and 
property, it is understood and declared, that no law ought ever to be 
made, or have force in the said Territory, that shall in any manner 



ORDINANCE OF 1 787. 577 

whatever interfere with, or affect private contracts or engagements,, 
bona fide and without fraud previously formed. 

Art. III. — Religion, morality, and knowledge, being necessary to- 
good government and the happiness of mankind, schools, and the 
means of education shall forever be encouraged. The utmost good 
faith shall always be observed towards the Indians; their lands and 
property shall never be taken from them without their consent ; and 
in their property, rights, and liberty they never shall be invaded or 
disturbed, unless in just and lawful wars authorized by Congress ; but 
laws founded in justice and humanity, shall, from time to time, be 
made, for preventing wrongs being done to them, and for preserving 
peace and friendship with them. 

Art. IV. — The said territory, and the States which may be formed 
therein, shall forever remain a part of this confederacy of the United 
States of America, subject to the Articles of Confederation, and to such 
alterations therein, as shall be constitutionally made; and to all the 
acts and ordinances of the United States in Congress assembled, con- 
formable thereto. The inhabitants and settlers in the said territory 
shall be subject to pay a part of the federal debts contracted, or to be 
contracted, and a proportional part of the expenses of government, to 
be apportioned on them, by Congress, according to the same common 
rule and measure by which apportionments thereof shall be made on 
the other States ; and the taxes for paving their proportion, shall be 
laid and levied bv the authority and direction of the legislature of the 
district, or districts, or new States, as in the original States, within the 
time agreed upon by the United States, in Congress assembled. The 
legislatures of those districts, or new States, shall never interfere with 
the primary disposal of the soil by the United States, in Congress assem- 
bled, nor with any regulations Congress may find necessary for secur- 
ing the title in such soil to the bona fide purchasers. No tax shall be 
imposed on lands the property of the United States ; and in no case 
shall non-resident proprietors be taxed higher than residents. The 
navigable waters leading into the Mississippi and St Lawrence, and 
the carrying places between the same, shall be common highways, and 
forever free, as well to the inhabitants of the said territory, as to 
the citizens of the United States, and those of any other States that 
may be admitted into the confederacy, without any tax, imposts, or 
duty therefor. 

Art. V. There shall be formed in the said territory not less than 
three, nor more than five States; and the boundaries of the States, as 
soon as Virginia shall alter her act of cession, and consent to the 
same, shall become fixed and established as follows, to wit: the west- 
ern State in the said territory, shall be bounded by the Mississippi, 
the Ohio, and Wabash rivers; a direct line drawn" from the Wabash 
and Post Vincents, due north, to the territorial line between the United 
States and Canada ; and by the said territorial line to the Lake of the 
Woods and Mississippi. The middle States shall be bounded by the 
said direct line, the Wabash, from Post Vincents to the Ohio, by the 
Ohio, by a direct line drawn due north from the mouth of the Great 
Miami to the said territorial line, and by the said territorial line. The 
37 



b/ 



APPENDIX. 



■eastern State shall be bounded by the last mentioned direct line, the 
Ohio, Pennsylvania, and the said territorial line; provided, however, 
and it is further understood and declared, that the boundaries of these 
three States shall be subject so far to be altered, that, if Congress 
shall hereafter find it expedient, they shall have authority to form one 
or two States in that part of the said territory which lies north of an 
east and west line drawn through the southerly bend or extreme of 
Lake Michigan. And whenever any of the said States shall have 
sixty thousand free inhabitants therein, such State shall be admitted, 
by its delegates, into the Congress of the United States, on an equal 
footing with the original States, in all respects whatever: and shall be 
at liberty to form a permanent constitution and State government ; 
provided the constitution and government, so to be formed, shall be 
republican, and in conformity to the principles contained in these 
articles: and, so far as can be consistent with the general interest of 
the Confederacy, such admission shall be allowed at an earlier period, 
and when there may be a less number of free inhabitants in the State 
than sixty thousand. 

Art. VI. — There shall be neither slavery nor involuntary servitude 
in the said territory, otherwise than in the punishment of crimes 
whereof the party shall have been duly convicted : provided, always, 
that any person- escaping into the same, from whom labor or service is 
lawfullv claimed in any one of the original States, such fugitive may 
be lawfully reclaimed and conveyed to the person claiming his or her 
labor or service as aforesaid. 

Be it ordained, by the authority aforesaid, that the resolutions of the 
23d of April, 1784, relative to the subject of this ordinance, be, and the 
same are herebv repealed and declared null and void. 

Done by the United States in Congress assembled, on the 13th day 
of July, in the year of our Lord 1787, and of their sovereignty and 
independence the 12th. 



INDEX. 



Acadia, 57, 435, 443, 445. 

Acts, Records, etc., 349. 

Adams, John, 121; J. Q^, 103. 

Advice and Consent of Senate, 
306; Me., Council, 315. 

Admiralty, 88, 93, 330, 336. 

Adjournment, 163; Me., 518. 

Aethelings, 8. 

Agamenticus, 438. 

Agreement or compact with for- 
eign nations, 275. 

Alabama, The, 234. 

Alamance, Battle on the, 96. 

Alexander, Sir William, 435. 

Alfred, King, 16. 

Ambassadors, 305, 311, 327, 335. 

Amendments, 372, 385; Me., 459, 

544- 

Ames, Fisher, 106. 

Andros, 55, 60, 71, 444. 

Anglo-Saxons, 8. 

Annapolis, N. S., 432. 

Apportionment of representa- 
tives, 127 ; Me., 493. 

Appointments to office, 305 ; Me., 

Appropriations, 236. 

Argall, 432. 

Armies, 236; Me., 472. 

Arms, Right to keep and bear, 

385; Me., 472. 
Aroostook War, 446. 
Articles of Confed'n, 101, 567. 
Assemble, Right of people to, 

385; Me., 471. 
Assize of Clarendon, 20. 
Assize of Northampton, 21. 
Attainder, 347; Me., 469. 
Attorney General, 301, 323; Me., 

540- 



Bail, 407; Me., 468. 
Baltimore, Lord, 41. 
Bankruptcy, 207. 
Berkeley, Sir William, 39; Lord 

John, 69. 
Biennial elections, 547. 
Bill of Attainder, 259, 266; Me.. 

469. 
Bills of Credit, 266. 
Bill of Rights, 30, 561. 
Bill to become a law, 174; Me., 

504- 

Bills for raising revenue, 171 : 

Me., 508. 
Boston, 51; Massacre, 96; Port 

Bill, 97. 
Boundary of Maine, 445. 
Bribery of voters', 541. 
Brooks, Governor, 452. 



Cabinet, 301 ; Officers, 169. 

Calvert, Sir Cecil, 41 ; Charles, 
45 ; Sir George, 41 ; Leonard, 
42. 

Canute, 17. 

Captures, 231. 

Carolina, 76; Fundamental Con- 
stitutions of, 77, 80. 

Carteret, Sir George, 69. 

Castine, 436. 

Ceorls, 9. 

Chancery and Chancellor, 327. 

Charles I., 23. 

Charter of Henry I., 19. 

Charleston, 80. 

Checks and Balances, 12 1. 

Choate* Rufus, 321. 
j Civil law, 5. 
I Civil War, 299, 417. 

(579) 



58o 



INDEX 



Classes of senators, 139. 
Cleeves, George. 436, 439. 
Clerk of H. R., 135. 
Clerk of Courts, 324. 
Coinage, 214, 267. 
Commander-in-chief, 299; Me., 

5I5- 

Commerce, 196. 

Common law, 4. 

Commissions, 315; Me., 536. 

Company of the West, 34 ; of 
London, 34. 

Compurgation, 20. 

Congress Assembling of, 153; 
consists of, 119; shall have 
power, 182; First Continental, 
98; Second, 99; at New York, 92. 

Convention, Albany, 85; Anna- 
polis, 107; Philadelphia, 107; 
Maine, 449, 451. 

Constitution, written, 2 : unwrit- 
ten, 2; U.S., 115; Me., 454. 

Consuls, 305, 326, 335. 

Continental currency, 191, 267. 

Contract, 271, Me., 469. 

Cooper, Sir Ashley, 77. 

Copyright, 222. 

Cornwall, County of, 443. 

Corporal punishment, 471. 

Corporations, 510. 

Corruption of blood. 348: Me., 
469. 

Council, 520. 

Councillors, 521. 

Council for New England, 48, 

434- 
Counsel, Assistance of, 403; Me., 

463- ' 

Counterfeiting, 216. 

Court, Supreme, of U. S., 318; 
circuit, 320, 40; district, 321; 
circuit of appeals, 321, 338; 
Territorial, 329; District of 
Columbia, 324; of Claims, 324; 
admiralty, 88, 93, 330, 336; 
Tribunals inferior to Supreme, 
227; Me., Supreme Judicial, 
525; Superior, 526; Municipal, 
527; of trial justice. 527; 
Probate, 527. 



Credit of the State, 541. 

Crimes, Trial of, 341; Me., 463. 



Danforth, Thomas, 444. 

Debts, of U. S., 184; Me., 541-2. 

Declaration of Independence, 99, 
103, 564; of Right, 31 ; of Liber- 
ties, 93; Me., 456. 

Delaware, 66, 72. 

District of Columbia, 249. 

Districts, Senatorial. 500: Voting, 
in towns, 543. 

Domicil, 479. 

Dongan, Thomas, 67. 

Duties, 184, 262, 273. 

£ 

Eadred, 17. 

Edward, the Confessor, 17. 

Egbert, 16. 

Electoral Commission, 286. 

Electors, 122; Me., 477, 483, 541. 

Electors of President, 280, 282, 
284, 290. 

Elections, 148; Me., 484, 495, 
501, 513, 536; of its members, 
each House judge of. 155; Me., 

505- 

Endicott, John, 49. 
Enumeration of the population, 

127. 
Enumeration of rights. 409; Me., 

477- 
Eorls, 8. 

Equity, 327, 336. 
Evesham, Battle of, 26. 
Evidence, Accused need not give 

against himself, 395 ; Me., 463. 
Excise, 184. 
Executive Departments, 299; 

power, 277; Me., 488, 512. 
Expatriation, 207. 
Ex post facto laws, 250, 266; 

Me., 469. 
Extradition, 354. 



Faith and Credit, 349. 
Federalist, 113. 
Felonies, 229. 



INDEX. 



5 8l 



Feudalism, 15, 19. 

Folk-mote, 13, 16. 

Forts. Magazines, etc., 247 

France, 431. 

Franklin, Benjamin, 219. 

Freemen, 9, 15. 



Gau, 11. 

Georgia, 82. 

Gerry, Elbridge, 109. 

Gilbert, Sir Humphrey, 33 ; 
Raleigh, 437. 

Godfrey, Edmund, 440, 441. 

Gorges, Sir Ferdinando, 61, 433, 
439; William, 437; Thomas, 
438; Ferdinando, 442. 

Gorgeana, 438. 

Government, 1. 

Governor, 501, 505, 512, 548; 
Qualifications of, 514; Com- 
pensation of, 514. 

Grand jury, 21, 395; Me., 465. 

Grant, President, 193. 

Greenbacks, 193. 

Guerchville, Madam de, 432. 



Habeas Corpus, 254; Me., 468. 

Hamilton, Alexander, no. 

Hartford, 63. 

Heads of Departments, 305. 

Henry I., 19; II., 20, 21 ; III., 25. 

High seas, 228. 

House of Commons, 19, 24, 26, 32. 

House of Representatives, 122 ; 

Me., 440, 449. 
Hundred, n. 
Hundred-mote, 13, 16. 



Impeachment, 133, 135, 143, 147, 
299, 316, 341; cases of, 316; 
Me., 500, 503. 

Implied powers of Congress, 251. 

Imposts, 184. 

Independents, 46. 

Indians, 205. 

Indictment, 395 ; Me., 463. 

Information, 311; Me., 516. 



Insurrections and invasions, 241. 
Intoxicating liquors, 201, 204 
Me., 550. 



James II., 29, 444. 

Jamestown, 36, 433. 

Jeopardy, 395 ; Me., 468. 

John, King, 22, 553. 

Journal of proceedings, 161 ; Me., 

506. 
Judges, 318; Me., compensation 

of, 527, 551 ; to give opinion, 

528; term of, 528. 
Judiciary, 319. 
Judicial power, 318, 326, 333; 

Me., 488, 525. 
Jurisdiction, 335, 343. 
Jury, 20, 21, 343, 465, 473. 
Justices of the peace, 529. 

K 

Kennebec Purchase, 436. 

King, 14. 

King, William, 451. 



Laets, 9. 

Land, n. 

Law, constitutional, 3 ; municipal, 
3 ; unwritten, 4; statute, 6; in- 
ternational, 6, 230. 

Laws suspended only by Legisla- 
ture, 470. 

Legal tender, 194, 213, 269. 

Leisler, Jacob, 68. 

Letters of marque and reprisal, 231. 

Lewes, Battle of, 25. 

Literature, 534. 

Locke, John, 77. 

London Company, 34, 430. 

Lords, 14; House of, 27. 

Lygonia, 437. 

M 
Macauley, 30. 

Madison, 270. 

Magna Charta, 22, 25, 553. 

Maine, 37, 57 ; Palatinate of, 438 ; 

Boundary of, 445 : Admission 

of as a State, 453. 



582 



INDEX. 



Mason, George, 107; Capt. John, 

61, 434. 
Mason and Dixon Line, 73. 
Massachusetts, 45 ; claim of to 

Me., 441, 443. 
Massachusetts Bay Colony, 50. 
Marshal, of Court, 324. 
Maryland, 41. 

Mecklenburg, Declaration at, 80. 
Military, 531 ; officers, elections of, 

53 1 ' 2 - 

Militia, 241-5, 299, 533. 

Money, to borrow, 190; to coin, 
212, 266; to be drawn from the 
treasury only by law, 263. 

Montfort, Simon de, 23, 25. 

Monts, Pierre de, 431. 

Municipal indebtedness. 546. 



N 



Nation, i. 

Naturalization, 207. 

Navigation, Acts, 55, 78, 87, 95. 

Navy, 238; Commander-in-chief 

of, 299. 
North Carolina, 79. 
New Hampshire, 61, 435. 
New Haven, 64. 
New Jersey, 65, 69. 
New Netherlands, 65. 
Newport, 58. 
New Sweden, 65, 
New York, 65. 
Notaries public, 529. 
Nova Scotia, 431, 435. 



Oath of office, 298; Me., 535. 

Obligation of contracts, 211, 266; 
Me., 469. 

Official acts and proceedings, 522. 

Officers, Presents to, 265; Com- 
missions of, 311; Removal of, 
316; Me., 536, 537. 

Ordeal, Trial by, 20. 

Order, resolution or vote, 1S1 ; 
Me., 504. 

Ordinance of 1787, 105, 573. 

Otis, James, 92. 



Pardon, 299; Me., 517. 

Parliament, 24, 32. 

Patents, 224. 

Pemaquid, 436. 

Penn, William, 72. 

Pennsylvania, 72. 

Pentagoet, 436. 

Petition, Right of, 91, 94, 385; 
Me., 471. 

Pilgrims, 46. 

Piracy, 228. 

Plough Patent, 437, 439. 

Plymouth, 48. 

Plymouth Company, 34, 433. 

Popham, George, 433. 

Popham Colony, 433. 

Portland, 437. 

Portsmouth, R. I., 58. 

Port Roj'al, N. S., 432. 

Postmaster General, 301. 

Post offices and roads, 218. 

Poutrincourt, 432. 

Powers of Congress, 182. 

Preamble, Const, of U. S., 116; 
of Me., 456. 

Preference to ports of one State, 
262. 

President, 277; qualifications of, 
291 ; removal, 292 ; Compen- 
sation, 297; Commander-in- 
chief, 299; Oath of office, 298; 
to fill vacancies, 310; give in- 
formation, 311; adjourn and 
convene Congress, 311; com- 
mission officers, 311. 

Press, Freedom of the, 385; Me., 
461. 

Privateers, 234. 

Private legislation, 510. 

Privilege from arrest, 164; Me., 
483, 508. 

Privileges and immunities, 352, 
419; Me., 473. 

Property, 419; Me., 457, 473, 474. 

Providence, 58. 

Public ministers, 305, 311, 326. 

333- 

Punish, Right of either House 
to, 160: Me., 506, 507. 



INDEX. 



583 



Punishments, Cruel and unusual, 

407; Me., 468. 
Puritans, 45. 



Qualifications of representa- 
tives, 126; Me., 494; of sena- 
tors, 140; Me., 502; of elec- 
tors of representatives, 123; of 
voters, 477-8. 

Quorum, 156. 



Raleigh, Sir Walter, 34. 
Randolph, Edmund, no. 
Ratification of Constitution, 114; 

Me., 453. 
Readings of a bill, 175. 
Register of probate, 530. 
Religious freedom, 385; Me., 460. 
Reporter and Reports, 324; Me., 

526. 
Reprieves, 299; Me., 517. 
Residence, 479. 

Restrictions on colonial trade, 37. 
Resumption Act, 193. 
Revolution of 1688, 29, 32. 
Rhode Island 57. 
Rules of proceedings, 158; Me., 

560. 
Rigby, Alexander, 439. 



Saco, 436. 

Sagadahock, 57, 445. 

Salem, 50. 

St. Sauveur, 432. 

Saussaye, 432. 

Savannah, 83. 

Schedule, Me., 544. 

Schools, 534. 

Scir, n. 

Searches and seizures, 392 ; Me., 

462. 
Seat of Government, 247. 
Secretary of State, 301 ; Me., 521 ; 

of Treasury, 301 ; of Interior, 

301 ; of Agriculture, 301. 
Senate, 137; advice and consent, 

305 ; Me., 500. 



Sergeant-at-arms, H. R., 135. 

Shaftesbury, Lord, 77. 

Shays' rebellion, 106. 

Sheriffs, 539. 

Ships of war, 275. 

Slaves, 10, 253; trade in, 253. 

Soldiers, quartering of, 95, 97, 391 ; 

Me., 472. 
Sons of Liberty, 98. 
South Carolina, 79. 
Speaker, H. R., 133; Me., 460. 
Speech, Freedom of, 385: Me., 

460. 
Standard of weights, 212. 
Stamp Act, 80, 90, 93, 95. 
State, 1. 

States of the Union, 311. 
Statement of receipts, etc., 263. 
Stone, William, 43. 



Taxation without representation, 

9i> 93- 
Taxes, Direct, 129; Capitation, 
261 ; on Exports, 261 ; Me., 476, 

537- 

Title of nobility, 265; Me., 476. 

Tonnage, duty of, 275. 

Treason, 344; Me., 469; Punish- 
ment of, 347. 

Treasurer, Me., 523. 

Treasury note, 191. 

Treaties, 304. 

Treaty of alliance, etc., 266. 

Trial by jury, 88, 93, 96, 336, 341, 
343; Me.; 463. 

Tripoli, 232. 

Troops, no State to keep, 275. 

Tucker, Richard, 437. 

Tun, 11. 

Tun-mote, 12. 

U 

Union of the States, 11S. 
United Colonies of New England. 

S5- 

V 
Vacancies in representation, 133. 
Vacancies in office, 310 ; Me., of 

Governor, 419. 



5 8 4 



INDEX. 



Valuation, General, 537. 
Vested rights, 457. 
Veto, 174; Me., 504. 
Vice President, 141, 278: Re- 
moval of, 316. 
Vines, Richard, 436. 
Virginia, 34. 

W 

War, 231, 275. 

Washington, 104, 106, 108, 115. 

Washington, City of, 249. 

Wedmore, Treaty of, 16. 

Wessex, 16. 

Wethersfield, Conn., 63. 

Whiskey Insurrection, 300. 



William the Conqueror, 18; of 
Orange, 29. 

Williams, Roger, 57. 

Windsor, Conn., 63. 

Winthrop, John, 51. 

Witena-gemote, 13, 16. 

Witnesses, Accused to be con- 
fronted with, 395; Me., 463. 

Writs of Assistance, 8q. 



Yeardley, Sir George, 37 
Yeas and Nays, 161. 
York, 61, 441. 
York, Duke of, 66. 442. 



